Originally there was legal sanction for 2nd stage natural justice and the delinquent officer had to be advised of the quantum of penalty proposed to be inflicted and to represent against the same. However the postion has since changed after the 42 amendment to the Constitution, where second stage extension of natural justice was withdrawn. However The Supreme Court of India in the case of Union of India and others vs. Mod. Ramzan Khan - 1991 (1) SLR 159 has held that even though the second stage of the inquiry in Article 311 (2) has been abolished by 42nd amendment to the Constitution, the delinquent officer is still entitled to represent against the conclusion of the Inquiry Officer, holding that the charges or some of the charges are not established. It has thus been laid down 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 the proposal for any particular punishment or not, the delinquent officer 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 be challenged hereafter. (Before the 42nd Amendment to the Constitution, it was necessary that such a person should be given an opportunity to represent, if he so desires, against the quantum of punishment proposed to be inflicted on him. This opportunity at the second stage has been now done away with by the aforesaid amendment to the Constitution).

However PNB observes this directive only in form. The objections raised by the charged officer at this stage are not considered, even if these are factually based and irrefutable.

Orignal Views Expressed by CVC on the subject

The Central Vigilance Commission tenders its advice in confidence and its advice is a privileged communication. No reference to the advice tendered by the Commission should, therefore, be made in any formal order.

It may happen that a charged public servant may go to a court of law either during the currency of the disciplinary proceedings or on their completion, pleading inter alia that a copy of the advice tendered by the Central Vigilance Commission to the disciplinary authority had not been made available to him and, therefore, the rules of natural justice were violated. In such cases, the Commission should be consulted and it would advice the disciplinary authority in regard to the drafting of the affidavit in opposition mainly with reference to the matters dealt with in the course of hearing before the Commissioner for Departmental Inquiries, about procedural aspects of departmental inquiries or advice tendered by it on the report of the Commissioner for Departmental Inquiries. The Supreme Court in CA No.1277 of 1975- Sunil Kumar Banerji Vs. State of West Bengal and others have held inter alia that the disciplinary authority could consult the Vigilance Commission and that it was not necessary for the disciplinary authority to furnish the charged officer with a copy of the Commission's advice. This may also be kept in view for contesting cases of the type mentioned in the previous paragraph.

However CVC has now revised its stand-point on this matter based on a recent decision of the Supreme Court of India, and their revised instructions are conveyed in their circular letter dated 28.09.2000 reading as under.

Para 3.6 (iii), chapter XI and para 8.6, Chapter XII of the Vigilance Manual, Vol. I, provide that the advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the concerned employee. It also mentions that the Central Vigilance Commission tenders its advice in confidence and its advice is a privileged communication and, therefore, no reference to the advice tendered by the Commission should be made in any formal order.

The Commission has reviewed the above instructions in view of its policy that there should be transparency in all matters, as far as possible. The Commission has observed that the Hon'ble Supreme Court had held a view in the case - State Bank of India Vs. D.C. Aggarwal and another [Date of Judgement: 13.10.1992] - that non-supply of CVC's instructions, which was prepared behind the back of respondent without his participation, and one does not know on what material, which was not only sent to the disciplinary authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. Further, the Hon'ble High Court of Karnataka at Bangalore, in writ Petition No. 6558/93, has also observed that if a copy of the report (CVC's advice) was furnished to the delinquent officer, he would have been in a position to demonstrate before the disciplinary authority either to drop the proceedings or to impose lesser punishment instead of following blindly the directions in the CVC's report.

The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e. first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a copy of the Commission's first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information. However, when the CVC's second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO's report, to give him an opportunity to make representation against IO's findings and the CVC's advice, if he desires to do so.

In view of the position stated above, para 3.6 (iii), Chpater XI and para 8.6, Chapter XII of the Vigilance manual, Vol. I, and also para 2 of the Commission's letter No. 6/3/73-R dated 20.08.1973 may be treated as deleted.