Oral Judgment:

G.S. Kulkarni, J.

1. This petition under Article 226 of the Constitution of India seeks a relief that the punishment of compulsory retirement dated 28 March, 2011 imposed on the petitioner by the appellate order, be quashed and set aside and for a further relief that the respondents be directed to hold and declare that the prior orders dated 30 March, 2009 issued by respondent no. 3 and order dated 7 November, 2009 issued by respondent no. 2, terminating the petitioner’s service be quashed and set aside and the petitioner be reinstated on the post of Assistant Security Officer with all consequential benefits. The substantive prayers as made in the petition are required to be noted, which reads thus:

                   “a) that this Hon’ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction to the respondents to produce the record and proceedings relating to the impugned order of punishment of compulsory retirement dated 28/3/2011 (Exhibit A Hereto) and after going through the legality and validity thereof, be further pleased to quash and set aside the same.

                   b) that this Hon’ble Court be further pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction tot he respondents to hold and declare that the orders dated 30/3/2009 issued by the respondent no. 3 (Exhibit ‘X’) and orders dated 7/11/2009 issued by respondent no. 2 (Exhibit ‘Y’) are quashed and set aside and further order the respondent nos. 2 and 3 to reinstate the petitioner in his post of Assistant Security Officer with immediate effect;

                   c) that this Hon’ble Court be further pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction to the respondents to hold that the petitioner be deemed to be in continuous service and with all consequential benefits, back wages and continuity of service from the date of order of removal from service issued by respondent no. 3 (Exhibit ‘X’ hereto).

2. The relevant facts are required to be noted: The petitioner joined the service of Mumbai Port Trust, which is arrayed as respondent no. 2. The petitioner was suspended from service in contemplation of Departmental Enquiry in 2003. However, on 28 September, 2004 the petitioner was reinstated in service. In this backdrop, the petitioner stated that another charge sheet was issued by the respondents containing eight Articles of charges, which are required to be noted:

                   “ARTICLE I: Shri Shinde did not inform his superiors about the raid conducted by the officials of ACB at his residence at Nerul in July, 2003. By committing the above misconduct, Shri Shinde has violated Regulation 3(1) of MbPT Employees (Conduct) Regulations 1976.

                   ARTICLE II: Shri Shinde, being and Assistant Security Officer, failed to follow proper procedure of lodging police complaint when he came to know about the illegal activities of S/Shri Narsing Modi, Shaka Babu, Suleman, Rajaram,and one lady named Lalhan Banu alias Telwali Bhabi.

                   By committing the above misconduct, Shri Shinde has violated Regulation 3(1A) (i) of the MbPT Employees (Conduct) Regulations, 1976.

                   ARTICLE III: Shri Shinde proceeded on leave to his native place from 12th June 1998 to 17th June, 1998 without ensuring that his leave has been sanctioned by leave sanctioning authority.

                   By committing the above misconduct, Shri Shinde has violated Regulation 3(1A) (ii) of the MbPT Employees (Conduct) Regulations 1976.

                   ARTICLE IV: (1) During the 2nd shift of 21st July 2003, Shri hinde was posted at 'B' Zone and he left the office premises one hour and fifteen minutes before the closure of duty hours i.e at 2215 hrs.

                   (2) During the IInd shift of 12th August 2003, Shri Shinde was posted at 'C' Zone and he deserted his place of duty for nearly 21½ hours i.e. from 1700 hrs to 1930 hrs.

                   (3) On 20th Sept 2003, Shri Shinde was posted at Port Trust Hospital and was found missing from his place of duty from 1100 hrs to 1400 hrs and again from 1445 hrs till the end of the shift.

                   (4) On 6th October, 2003 Shri Shinde did not report for duty at Port Trust Hospital at the reporting time i.e. 1000 hrs but reported to the duty place at 1700 hrs i.e right from 1000 hrs to 1700 hrs he was missing from his place of duty.

                   (5) On 11th October, 2003, Shri Shinde was found missing from his place of duty from 1330 hrs to 1630 hrs.

                   (6) on 22nd October, 2003, Shri Shinde was found missing from his place of duty from 1100 hrs to 1600 hrs.

                   (7) On 24th October, 2003 shri shinde was found missing from his place of duty from 1300 hrs to 1630 hrs.

                   (8) Shri Shinde failed to lodge a complaint with the police when the wind screen glass of the Security jeep in which he was going to Frere basin yard (for checking) was damaged by a miscreant who threw stone at it and ran away;

                   (9) Shri Shinde had removed Shri A.J. Gosavi Sr. Security Guard and Shri B.K.Bhalerao, Sr. Security Gurad from their duty points on 7/4/1999 and 9/4/1999 respectively and took them alongwith him leaving their duty points unattended.

                   By committing the above misconducts, Shri Shinde has violated Regulation 3(1A) (iii) of MBPT Employees (Conduct) Regulations, 1976.

                   ARTICLE V: (1) In the case of theft of ball bearings by one Shri Jeetendra Gupta, Shri Shinde was directed by the CSO to obtain the copy of panchanama carried out by Customs and forward the same to Security Head Quarters. However Shri Shinde made considerable delay in following the above orders.

                   (2) Shri Shinde had refused to accept a memo wherein Shri Shinde was requested to furnish the source of funding of the car as Shri Shinde had earlier stated that the car was purchased by his father which was being used by him and whether his father gets income from any source. By committing the above misconducts, Shri Shinde has violated Regulation 3)1A)(vi) of MbPT Employees (Conduct) Regulations, 1976.

                   ARTICLE VI: (1) Shri Shinde entered Wadala Incinerator Container Yard on 24.09.1997 in a private car with five persons, who were not holding DEPS.

                   (2) Shri Shinde while functioning as a Assistant Security Officer had allowed Dr. (Mrs) Kalpana .S.Shinde and Dr. K.D.Shinde to use MbPT residential quarters allotted to him at Vineet Nagar and Telephone No. 3781738 for their personal and commercial gains. Both the residential quarters and telephone were allotted to Shri Shinde in his official capacity. Shri Shinde has thus violated Regulations 17 and 21(a)(v) of MbPT Employees (Allotment and Occupancy of Residence) Regulations, 1975.

                   (3) It was noticed on 26.09.1997 at about 1915 hrs. that Shri Shinde had given his visiting card to one Shri Deepak Bagav, Sr. Personnel Manager, Indian Express Newspaper Ltd., Mumbai and advised him that he could pass through the docks at any time showing his visiting card.

                   By committing the above misconducts, Shri Shinde has violated Regulation 3(1A) (xii) of MbPT Employees (Conduct) Regulations, 1976 and Regulations 17 and 21 (a) (v) of the MbPT Employees (Allotment and Occupancy of Residence) Regulations, 1975.

                   ARTICLE VII: (1) Shri Shinde had remained absent on 31st July 2003 and submitted C.L application stating reasons for his absence as his illness. However Shri Shinde was in the High Court on 31st July 2003 for full day in connection with bail application of his brother Dr. Shinde.

                   (2) Shri Shinde while submitting the declaration to the CMO for registration of dependant family members had declared that his father does not have income from the sources mentioned in the declaration form but he had stated that the Toyota Cressida car which he possessed was purchased by his father and given to him for use.

                   (3) On 2nd August, 2003 Shri Shinde informed the CSO on telephone that due to viral fever, he will not able to attend duties for a week. However Shri Shinde visited Docks in his private car No. BLB 408 between 1200 hrs to 1430 hrs on 5th August 2003.

                   (4) On 29th August 2003, Shri Shinde was inside Dock premises at 1500 hrs and left Docks through Orange Gate No. 1 at about 1505 hrs. However he has recorded his reporting time as 1500 hrs in the combined diary of 'C' Zone at STP.

                   (5) On 1st September 2003, Shri Shinde has entered the Green Gate, Indira Dock at about 1505 hrs and passed out of the Docks through Orange Gate, Princes Dock No. 1 at about 1515 Hrs. However, he recorded his reporting time as 1500 hrs in the combined diary at 'C' Zone at STP.

                   By committing the above misconduct, Shri Shinde has violated Regulation 3(1A) (xiii) of MbPT Employees (Conduct) Regulations 1976.

                   ARTICLE VIII: Shri Shinde had filed a Writ Petition bearing No. 8077/2003 against the Dy. Chairman and other officers of MbPT. By committing the above misconduct Shri Shinde has violated Regulation No. 3 (1A) (xiv) of MbPT Employees (Conduct) Regulations, 1976 and under section 120 of the Major Port Trusts Act, 1963.”

3. On 5 July, 2005. a criminal case was registered against the petitioner for the offences punishable under Sections 380, 409, 461 r/w. 120-B, 34 of the Indian Penal Code in relation to which the petitioner was arrested. He was placed under suspension. The criminal case, however, resulted into acquittal in view of the order dated 25 January, 2007 passed by the Metropolitan Magistrate, 16th Court, Mumbai in C.C. No. 92/PW/2005. Consequent thereto, on 23 June, 2007, the petitioner was reinstated in service.

4. Insofar as the enquiry under charge sheet in question dated 3 July, 2004 is concerned, the petitioner denied all the charges levelled against against him in the reply to the charge sheet dated 1 April, 2008. On 18 October, 2008, the Enquiry Officer submitted his enquiry report to respondent no. 3 – The Deputy Chairman of Mumbai Port Trust. On 9 February, 2009, the petitioner submitted his statement of defence to respondent no. 3. On 30 March, 2009, the Disciplinary Authority imposed the major punishment of dismissal from service. On 2 May, 2009, the petitioner, being aggrieved by such punishment of dismissal from service, filed a statutory appeal before the Chairman, Mumbai Port Trust/ respondent no. 2. By an order dated 7 November, 2009, respondent no. 2 reduced the punishment of dismissal from service to compulsory retirement. On 21 January, 2010, the petitioner filed a Review Application before respondent no. 1 praying for review of the said decision of compulsory retirement. On 28 March, 2011, respondent no. 1 did not review the decision of the Appellate Authority. On such backdrop, the present petition is filed praying for the reliefs as noted by us hereinabove.

5. At the outset, we need to observe that the petition was admitted by an order dated 4 July, 2012 . A co-ordinate Bench of this Court [Dipankar Datta, CJ (as His Lordship then was) and M.S. Karnik, J.] passed a detailed order dated 4 February, 2022 recording the challenge as raised in the petition and as to whether the Disciplinary Authority was justified in dismissing the petitioner from service without forwarding to him a copy of the enquiry report, in which all but one of the sub-charges is held to be proved. The Court considering the decision of the Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar, etc.(AIR 1994 SUPREME COURT 1074) as also the subsequent decision of the Supreme Court in Himachal Pradesh State Electricity Board Ltd. vs. Mahesh Dahiya((2017) 1 SCC 768) observed that prima facie the petitioner has satisfied the Court that the matter should be remitted to the Disciplinary Authority. The order dated 4 February, 2022 is required to be noted, which reads thus:

                   1. The petitioner was employed with the Mumbai Port Trust as an Assistant Security Officer. Following disciplinary proceedings, he was dismissed from service. In appeal, the appellate authority reduced the penalty and imposed the penalty of compulsory retirement. A revision, at the instance of the petitioner, having proved abortive, this writ petition has been instituted challenging the order of the revisional authority.

                   2. Several points have been urged by Mr. Panchal, learned advocate for the petitioner to persuade us hold that the disciplinary proceedings stand vitiated and the order of penalty ought to be interdicted.

                   3. It appears from the records that the petitioner’s Disciplinary Authority, without furnishing copy of the report of enquiry to the petitioner, recorded that the said report had been perused and that there was no reason to disagree with the findings returned by the Enquiry Officer; hence, it was proposed to dismiss the petitioner from service. Pursuant thereto, the Disciplinary Authority issued a show cause notice calling upon the petitioner to explain why he shall not be dismissed from service.

                   4. At the outset, we need to consider the fundamental point urged by Mr. Panchal while asserting that the action of the Disciplinary Authority was not free from bias. It is, whether the Disciplinary Authority was justified in dismissing the petitioner from service without forwarding to him a copy of the enquiry report in which all but one of the sub-charges were held to be proved. Having regard to the law laid down by the Constitution Bench of the Supreme Court in AIR 1994 SC 1074 (Managing Director ECIL, Hyderabad, etc. etc. vs. B. Karunakar, etc. etc.) and the decision reported in (2017) 1 SCC 768 (Himachal Pradesh State Electricity Board Limited vs. Mahesh Dahiya), the petitioner, prima facie, has satisfied us that the matter should be remitted to the Disciplinary Authority. However, we refrain from passing such order today considering the fact that the petitioner did not raise the point of non-supply of the enquiry report to him either in the response to the show cause notice issued by the Disciplinary Authority prior to dismissing the petitioner from service or in the appeal/revision petitions that were subsequently filed by him. It is only for the first time that this point has been raised by the petitioner in this writ petition.

                   5. We have requested Mr. Panchal and Mr. Singh, learned Additional Solicitor General for the respondent no. 1 to make proper research and assist us in rendering appropriate justice to the cause espoused before us.

                   6. The writ petition is heard in part.

                   7. List the same on Tuesday next (February 8, 2022) at 2.30 p.m.”

6. It is on the aforesaid backdrop, the proceedings are before us today. Mr. Panchal, learned counsel for the petitioner, at the outset, would submit that this is a clear case where the enquiry report has not been furnished to the petitioner in terms of the requirements of the law as laid down by the Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar (supra). He submits that the Constitution Bench has clearly held that whatever is the nature of punishment, whenever the rules require an inquiry to be held, for inflicting the punishment, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. It is submitted that for forming any opinion in regard to the punishment which is to be imposed, the petitioner ought to have been granted an opportunity to submit his representation/reply on enquiry report, in the event such enquiry report records that the charge is proved against the deliquent/petitioner. It is his submission that in the present case, this is exactly what has not been followed by respondent no. 2 as clearly seen from the contents of the memo dated 21 November, 2008 as issued to the petitioner. The said memo is required to be noted, which reads thus:

                   No. TM/SHQ/SDS-ASO/3765 Date: 21 Nov 2008

                   To,

                   Shri S. D. Shinde

                   Assistant Security Officer

                   MbPT Security Organisation.

                   MEMO:

                   Attention of Shri S.D. Shinde, Assistant Security Officer, MbPT Security Organisation, is invited to the charge-sheet issued to him vide No.TM/SHQ/ASO-SDS/1899 dated 3.7.2004.

                   2. Shri H.D. Kulkarni, Retd. Railway Manager, MbPT, who was appointed as Inquiring Authority vide order No.TM/SHQ/DE/ASO/1118 dated 7.5.2005 to inquire into the charges framed against Shri S.D. Shinde, has submitted his report dated 18.10.2008 (copy enclosed). The Enquiry Officer has held all the Articles of Charges except Article VI (3) against Shri Shinde as Proved.

                   3. On careful consideration of the Inquiring Authority's report and the evidence on record, I concur with the findings of the Inquiring Authority.

                   4. Under Regulation 13(4) of the Mumbai Port Trust Employees (Classification, Control and Appeal) Regulations, 1976, notice is hereby given to Shri S.D. Shinde, Assistant Security Officer, MbPT Security Organisation, that it is proposed to impose on him with immediate effect, the penalty of dismissal from Port Trust service Shri Shinde is hereby called upon to submit within 15 days from the date of receipt of this memo, such representation as he may wish to make on the proposed penalty as mentioned above on the basis of the evidence adduced during the enquiry. If no representation is submitted within the period specified, it will be presumed that Shri Shinde has no representation to make and the proposed penalty will be imposed upon him without further reference to him.

                   5. Receipt of the memorandum may be acknowledged.

                   (A.K. Bal)

                   Deputy Chairman”

7. Drawing our attention to paragraph 4 of the memo (supra), Mr. Panchal submits that the contents of paragraph 4 of the aforesaid memo are clearly in the teeth of the mandatory requirements of law to issue a notice and seek the petitioner’s representation before forming an opinion that the enquiry report would necessarily conclude that the punishment is required to be imposed on the petitioner. Mr. Panchal would submit that this position in law has been reaffirmed by the Supreme Court in a recent decision in the case of State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow vs. Ram Prakash Singh(2025 SCC OnLine SC 891). It is, therefore, his submission that the proceedings be remanded to the Disciplinary Authority for a fresh decision to be taken by following due process of law and as per the decision of the Constitution Bench of the Supreme Court (supra).

8. On the other hand, Mr. Talsania, learned counsel for respondent nos. 2 and 3 has opposed the reliefs while supporting the impugned order of compulsory retirement passed against the petitioner. He submitted that the memo as issued to the petitioner would amount to specific compliance of the principles of natural justice in terms of the requirements as laid down by the Supreme Court in Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar (supra). In supporting his contention, he would submit that the petitioner would be required to show prejudice which was caused to him, failing which the petitioner’s contention cannot be accepted. In support of his submission, Mr. Talsania has placed reliance on the decision of the Supreme Court in Haryana Financial Corporation and Anr. vs. Kailash Chandra Ahuja((2008) 9 SCC 31).

 9. We have learned counsel for the parties. We have perused the record. We find that there is much substance in the contentions as urged on behalf of the petitioner that it was a mandatory requirement as held by the Constitution Bench of the Supreme Court in the case of Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar (supra), that the petitioner necessarily should have been served with a copy of the enquiry report thereby calling upon the petitioner to submit a representation on the enquiry report and only thereafter form an opinion on the nature of the punishment to be imposed, so that the petitioner can be heard on such punishment.

10. Relevant to the context in hand, the Supreme Court in Himachal Pradesh State Electricity Board Ltd. vs. Mahesh Dahiya (supra) while considering the decision of Constitution Bench, held that the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. The relevant observations of the Supreme Court are required to be noted, which reads thus:

                   “25. The Constitution Bench in Managing Director, ECIL, vs. B. Karunkar & Ors. after elaborately considering the principle of natural justice in the context of the disciplinary inquiry laid down following in para 29, 30 (iv) and (v):

                   “29. Hence it has to be held that when the enquiry officer is not the Disciplinary Authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the Disciplinary Authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a par t of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the Disciplinary Authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.”

                   “30. …….(iv). In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.”

                   (v). The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice”

                   26. Present is not a case of not serving the inquiry report before awarding the punishment rather the complaint has been made that before sending the inquiry report to the delinquent officer, Disciplinary Authority has already made up its mind to accept the findings of the inquiry report and decided to award punishment of dismissal. Both the learned Single Judge and the Division Bench on the aforesaid premise came to the conclusion that principle of natural justice have been violated by the Disciplinary Authority. The Division Bench itself was conscious of the issue, as to whether, inquiry is to be quashed from the stage where the Inquiry OfficerDisciplinary Authority has committed fault i.e. from the stage of Rule 15 of the CCS (CCA) Rules as nonsupply of the report. Following observations have been made in the impugned judgment by Division Bench in para 21:(Mahesh Dahiya Case)

                   “21. Having said so, the core question is – whether the inquiry is to be quashed from the stage where the Inquiry Officer/Disciplinary Authority has committed fault, i.e. from the stage of Rule 15 of the CCS (CCA) Rules, i.e. non-supply of inquiry report, findings and other material relied upon by the Inquiry Officer/Disciplinary Authority to the writ writ petitionerrespondent herein to explain the circumstances, which were made basis for making foundation of inquiry report or is it a case for closure of the inquiry in view of the fact that there is not even a single iota of evidence, prima facie, not to speak of proving by preponderance of probabilities, that the writ petitioner has absented himself willfully and he has disobeyed the directions?”

                   ……….

                   31. Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ petitioner with major penalty which is a clear violation of principle of natural justice. We are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ petitioner on the inquiry report. The writ petitioner in his representation to the inquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules. We are, thus, of the view that there was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report. We are, thus, of the view that the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained.

                   (emphasis supplied)

11. In the present case, it is quite clear that respondent no. 2 had formed an opinion on the punishment to be imposed before calling upon the petitioner to submit his say on the enquiry report. Hence such action on the part of the disciplinary authority would be required to be held to be contrary to the decision of the Constitution Bench in Managing Director ECIL, Hyderabad, etc. vs. B. Karunakar (supra) .

12. Insofar as Mr. Talsania’s contention that the test of prejudice was required to be satisfied, although at the first blush, looked to be attractive, however, on a deeper scrutiny, the same cannot be accepted considering the clear position in law as laid down in the recent decision of the Supreme Court in the case of State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow vs. Ram Prakash Singh (supra) wherein the Supreme Court delving on authoritative pronouncement of the Constitution Bench in Managing Director, ECIL, Hyderabad (supra), held that the Constitution Bench decision has stood the test of time, without being overruled in any subsequent decision, hence the law as laid down by the Constitution Bench continues to bind all Benches of lesser strength. The Court accordingly held that considering such clear position in law, it was difficult for the Court to be guided by the decisions insisting on application of the ‘prejudice’ principle in the wake of the Constitution Bench decision as discussed in paragraph 49 of the judgment. The relevant observations as made by the Supreme Court are required to be noted, which read thus:

                   “48. Looked at from a different angle, it is unheard of and simply unacceptable to us that employers could brazenly disregard the law declared by the Constitution Bench and/or act in derogation of statutory rules, yet, argue that no prejudice was caused to the dismissed employee by reason of not giving him access to the enquiry report. If the answer to question (v) given in B. Karunakar (supra) is to be regarded as the final word, we are left to wonder whether it would have at all been necessary for the Constitution Bench to elaborately discuss the law on the subject, stress on the importance and need for the enquiry report to be furnished to the delinquent employee and to introduce a new regime with prospective effect. If the test of ‘prejudice’ were to be given primordial importance, the Constitution Bench could have, on the contrary, simply observed that post 20th November, 1990 [the date on which Mohd. Ramzan Khan (supra) was decided], if in case report of enquiry in a particular case were not furnished to the delinquent employee and upon the matter reaching the tribunal/court for adjudication at a subsequent stage, the employer is under no obligation to explain why the report has not been furnished and its action of taking disciplinary action has to be judged and could be interdicted only in the event the employee, on the touchstone of ‘prejudice’, were to succeed in proving that he had been denied reasonable opportunity to defend. The Constitution Bench’s careful consideration of question (i), viz. the need to furnish the enquiry report to a delinquent employee before disciplinary action is taken being an integral part of natural justice, the answer thereto would be rendered redundant if such an approach by the employers is permitted. Allowing employers to circumvent the law declared by the Constitution Bench and dilution of such declared law regarding the necessity, nay imperative, to furnish the enquiry report by interpretative exercises subsequently undertaken by Benches of lesser strength without bearing in mind other Constitution Bench decisions (we propose to refer to them briefly, immediately after this discussion) on the effect of breach of natural justice principles and the consequences that could visit an employee whose service is terminated if the report were not furnished in the first place is an unfortunate development which undermines the rule of law.

                   49. Just as Articles 14, 19 and 21 of the Constitution constitute a triumvirate of rights of citizens conceived as charters on equality, freedom and liberty, the trio of decisions of Constitution Benches of this Court in Union of India v. Tulsiram Patel, Olga Tellis v. Bombay Municipal Corporation and A.R. Antulay v. R.S. Nayak form the bedrock of natural justice principles being regarded as part of Article 14 of the Constitution and obviating the need to demonstrate ‘prejudice’ if a challenge were laid on the ground of breach of Article 14. In Tulsiram Patel (supra), it was held that violation of a principle of natural justice is violation of Article 14. The dictum of the three Judge Bench in S.L. Kapoor v. Jagmohan that non-observance of natural justice is itself prejudice to any man and proof of prejudice, independently of proof of denial of natural justice is unnecessary, was approved by the Constitution Bench in Olga Tellis (supra). No prejudice need be proved for enforcing the Fundamental Rights is the emphatic assertion in A.R. Antulay (supra).

                   50. These Constitution Bench decisions have stood the test of time. Without being overruled in any subsequent decision, the law continues to bind all Benches of lesser strength. Equally, it cannot be gainsaid that with the march of time and the progress made in the years since then, nuanced or refined approaches to applying natural justice principles may be necessary and appropriate in specific cases. There can be no quarrel with this approach. However, we find it difficult for us to be guided by the decisions insisting on application of the ‘prejudice’ principle in the wake of the aforesaid Constitution Bench decisions. Accepting such decisions of lesser strength would signal re-imposition of the legal regime pre-Mohd. Ramzan Khan (supra) when the employer was under no obligation to furnish the enquiry report. We are afraid, this could encourage mischievous employers to drain out its terminated employee by ensuring that copy of the enquiry report is not furnished.”

                   (emphasis supplied)

13. In the aforesaid circumstances, we are of the clear opinion that it was necessary for respondent nos. 1 and 2 to follow the mandate of law, namely, to issue a notice to the petitioner along with enquiry report calling upon the petitioner to submit his say on the enquiry report and only after consideration of such contentions which the petitioner may urge in reply to the enquiry report, on forming an appropriate opinion, a further action of issuance of show cause notice, in the event any punishment is sought to be imposed, ought to have been followed. We are, therefore persuaded to accept the contentions as urged on behalf of the petitioner that the petition needs to be partly allowed by remanding the proceedings to the disciplinary authority for a fresh procedure to be following inflicting any punishment, if so warranted.

14. The petition, accordingly, is partly allowed in terms of the following order:

                   ORDER

                   (i) The impugned order dated 30 March, 2009 dismissing the petitioner from service, as modified by the order dated 7 November, 2009 passed by respondent no. 2-Appellate Authority reducing the punishment of dismissal to compulsory retirement, are quashed and set aside.

                   (ii) The Departmental Enquiry proceedings stand remanded to the disciplinary authority with a direction that within a period of 15 days from the date the copy of this order is available to the petitioner, a notice along with enquiry report be issued to the petitioner calling upon the petitioner to submit his “say”/ contentions on the enquiry report, which be submitted by the petitioner within a period of four weeks from the receipt of show cause notice.

                   (iii) After the petitioner’s say is received and on application of mind to the petitioner’s say, the disciplinary authority shall form an opinion for taking further appropriate steps. In the event, the disciplinary authority is of the opinion that a penalty/punishment is proposed to be imposed, in that event, an appropriate show cause notice shall be issued to the petitioner. The petitioner be granted an opportunity to reply to the said show cause notice as also an opportunity of hearing and thereafter an appropriate decision in accordance with law be taken.

                   (iv) Let this exercise be completed within a period of six months from the date the copy of the order is made available. All contentions of the parties are expressly kept open.

15. Petition is disposed of in the aforesaid terms. No costs.