Ghosh Vs. Union of India & Anr  Insc 730 (1 November 2006)
Sinha & Markandey Katju
out SLP) No. 1400 of 2006) S.B. Sinha, J.
was appointed as Khalasi at Kota Railway Station of Western Railway Administration
in the year 1981. On 8th
February, 1985, he was
promoted as a Junior Clerk. A test was conducted by Chief Works Manager (Wagon
Repair Shop) of Western Railway, Kota.
He qualified in the same test. The Western Railways Administration started one
Railway Electrification Project and he was transferred thereto in September
working there as a Junior Clerk, he was promoted as a Senior Clerk on 24.4.1987
on an ad hoc basis. On completion of the project, he was repatriated to his
original office. Although he was posted in the office of the Kota Railway
Station of Western Railway Administration, he was kept in the said workshop. A
request for change of his name was agreed to by the competent authority,
namely, the second Respondent herein and his request for absorption on the said
post was also accepted.
complaint against him by four employees working in the Divisional Office of
Kota was made on 4.5.1994 that he was not entitled thereto alleging that the
promotion granted to him was not a regular one. Relying on or on the basis of
the said complaint, a show cause notice was issued on 10.4.1995 to him which is
in the following terms:- "According to the rule for the change of lien,
the application of the employee should have been forwarded from his parental
department. But it did not happen so and then the Chief Clerk Sh. Hridesh Bhatnagar,
employee in the Establishment Branch in Divisional Office without any enquiry
fixed the lien of Sh. Shekhar Ghosh in the W.B.S.M. Group in the Divisional Office
and Rs.5000/- as a bribe was taken for this forgery work.
Ghosh is employed on today's date as a clerk by way of forgery under Assistant
Engineer (Central), Kota. Sh. Shekhar Ghosh has not even
passed any departmental examination for becoming clerk; even then he has been
posted as clerk in a forged manner.
Shekhar Ghosh had come after having repatriated from R.I. Organisation then he
should have been relieved for Goods Compartment Repairing Factory, Kota and whatever his position adjusted there as Khalasi
or Fitter, there itself he should have been adjusted.
it id not happen so. Nothing sort of any correspondence was done with the
parental Department of Sh. Shekhar Ghosh.
similar situated case, Sh. Pandey was already refused to take from R.I. then
how the rule framed separately for Sh. Shekhar Ghosh.
it is requested that this forgery case of Sh. Shekhar Ghosh be got enquired
into immediately and disciplinary action be initiated against the then Head Clerk
who mislead the administration and having taken bribe in a fraudulent manner Sh.
Shekhar Ghosh made a clerk from Khalasi." He filed his reply to the show cause
requesting that he should be treated to be a selected Clerk `whose lien has
been changed from WRS to Division' so that his legitimate dues are saved.
order dated 18.10.1996, he was repatriated to his original place of work i.e.
the office of the Chief Manager of Factory, Goods Compartment Repairing
Factory, Kota. Yet again, on 22.10.1996, another Office Order was issued.
filed an Original Application before the Central Administrative Tribunal. The
operation of the order was stayed by an interim order dated 1.11.1996. However,
by an order dated 17.11.1996, the Administrative Tribunal noticing that his
name in the seniority list had been included by way of mistake, it was opined
that there was no illegality or infirmity in the action taken in repatriating
Petition filed by Appellant questioning the said order had been dismissed by a
Division Bench of the High Court by an order dated 26.10.2004. The High Court
arrived at its findings, inter alia, on the premise that a finding of fact had
been recorded by the Tribunal that Appellant had been holding the post of a
Clerk on regular basis was accepted under a mistake, holding:- "The
juniors to the petitioner had rightly made a representation against this
untimely service benefits given to the petitioner. It is also not the case
where without notice and affording opportunity of hearing to the petitioner the
impugned order has been passed by the respondent. On the representation made by
the other employees the respondents took all the care and caution, the enquiry
had been conducted and only after detection of the mistake and after giving
opportunity of hearing to the petitioner he was reverted.
considering the entire record of the writ petition we are satisfied that the
petitioner was rightly repatriated back to the work-shop where he was holding
the lien on the post of khalasi (Gr.II)." The contention of Appellant was
that an entry had been made in his service record in regard to regularization
of his services but no order was served upon him stating:- "That the
decision of the respondents is contrary to the record. In the service record of
the applicant it has been verified by the competent authority that applicant is
holding the post of Junior Clerk in substantive capacity." In the
counter-affidavit filed before the Tribunal, Respondents herein accepted the
said contention stating:-
That the contents of para no. 5(j) of the original application are denied.
Orders for regularization of the applicant as Clerk were never passed. The
alleged entry made in the service record is also wrong and due to the mistake
committed on part of the answering respondent." Appellant had asked for
production of his service records which was declined. Respondents, therefore,
indisputably proceeded on the basis that a mistake occurred in making an entry
in the service book of the appellant.
mistake committed admittedly, thus, was on the part of the respondents.
mistake was said to have been detected on the basis of the complaint made by
four employees. Serious allegations had been made against the appellant
therein. If the allegations made therein were correct; then not only the
appellant but also other officers of the department, whom he had allegedly paid
bribe for forging the documents, were guilty of misconduct.
had never been supplied with a copy of the said complaint.
disciplinary proceedings were initiated against him. No charge was framed, nor any
witness was examined. No Inquiry Officer was appointed to conduct an enquiry
into the allegations on the charges of misconduct framed against the appellant
in that behalf.
order dated 21.11.1996 clearly demonstrates that the Senior Divisional Officer,
Kota, without holding an enquiry arrived at a finding that his original post
was Khalasi in Wagon Repair Shop, Kota and his lien had been cancelled. He was
directed to be repatriated. Despite arriving at such a finding, a
post-decisional hearing was sought to be afforded to the appellant.
decisional hearing was not called for as the disciplinary authority had already
made up its mind before giving an opportunity of hearing. Such a
post-decisional hearing in a case of this nature is not contemplated in law.
The result of such hearing was a foregone conclusion.
K.I. Shephard v. Union of India AIR 1988 SC 686, this Court opined:-
"...It is common experience that once a decision has been taken, there is
a tendency to uphold it and a representation may not really yield any fruitful
purpose." [See also V.C. Banaras Hindu University and Ors. v. Shrikant, 2006 (6) SCALE 66].
are, however, not oblivious of the fact that there is some shift in the concept
of principles of natural justice which has been noticed by this Court in P.D. Agrawal
v. State Bank of India & Ors., 2006 (5) SCALE 54 in the following terms:
Court has shifted from its earlier concept that even a small violation shall
result in the order being rendered a nullity. To the principal doctrine of audi
alterem partem, a clear distinction has been laid down between the cases where
there was no hearing at all and the cases where there was mere technical
infringement of the principal. The Court applies the principles of natural
justice having regard to the fact situation obtaining in each case.
not applied in a vacuum without reference to the relevant facts and
circumstances of the case. It is no unruly horse. It cannot be put in a
straightjacket formula" It is not denied or disputed that even when a
mistake is sought to be rectified, if by reason thereof, an employee has to
suffer civil consequences ordinarily the principles of natural justice are
required to be complied with.
so held in Ram Ujarey v. Union of India [(1999) 1 SCC 685] in the following
There is yet another infirmity in the impugned order of reversion. The
appellant had been allowed the benefit of service rendered by him as Coal Khalasi
in the Loco Department from 1964 to 1972 as that period was counted towards his
seniority and it was on that basis that he was called for the trade tests which
the appellant had passed and was, thereafter, promoted to the posts of
Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by
him from 1964 to 1972 was intended to be withdrawn and promotion orders were to
be cancelled as having been passed on account of mistake, the respondents ought
to have first given an opportunity of hearing to the appellant. The appellant
having earned two promotions after having passed the trade tests, could not
have been legally reverted two steps below and brought back to the post of Khalasi
without being informed that the period of service rendered by him from 1964 to
1972 could not be counted towards his seniority and, therefore, the promotion
orders would be cancelled.
situation of this nature, it was not open to the respondents to have made up
their mind unilaterally on facts which could have been shown by the appellant
to be not correct but this chance never came as the appellant, at no stage, was
informed of the action which the respondents intended to take against
him." Curiously Respondents in their counter-affidavits filed before the
Tribunal and the High Court did not raise any plea of rectification of any
mistake. It was also not stated in the show cause notice issued to the
appellant. Only a plea of mistake was taken for the first time before the
Tribunal, but no plea was taken that it was entitled to rectify the same or his
order impugned before it was capable of being rectified. Thus, it was not a
case where an opportunity of hearing was given to Appellant on the premise that
a mistake had been committed by the authorities of the first respondent and the
same was required to be rectified.
mistake is to be rectified the same should be done as expeditiously as
possible. [See Board of Secondary Education, Assam v. Mohd. Sarjumma (2003) 12 SCC 408] We are not oblivious
that in Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and Others
[(1994) 5 SCC 180], an order passed by way of a mistake was permitted to be
corrected as the same was done in violation of the order of injunction. In such
a situation only, this Court held that an opportunity of being heard for
correcting such mistake would not arise because there would not have been any
occasion to take one view or the other in the matter on the basis of
representation to be made by the affected employee.
also not a case where a mistake was apparent on the face of the records and,
thus, compliance of the principles of natural justice would not have made any
difference as was in the case of Smt. Ratna Sen nee Roy v.
State of West Bengal & Ors. [1995 (1) Cal. LT 462].
to comply with the principles of natural justice would, therefore, vary from
case to case. If upon giving an opportunity of hearing to an affected employee,
it is possible to arrive at a different finding, the principles of natural
justice must be complied with. We may notice that recently in Union of India
& Ors. v. Bikash Kuanar [2006 (10) SCALE 86], a Division Bench of this
Court opined:- "It is now trite that if a mistake is committed in passing
an administrative order, the same may be rectified. Rectification of a mistake,
however, may in a given situation require compliance of the principles of
natural justice. It is only in a case where the mistake is apparent on the face
of the records, a rectification thereof is permissible without giving any
hearing to the aggrieved party." In this case, Respondents accept that
Appellant was entitled to a hearing. All the necessary ingredients of
principles of natural justice were thus required to be complied with. Appellant
as noticed hereinbefore had not been given adequate opportunity of hearing
hearing was sought to be given was a post-decisional one, which is bad in law;
copy of the complaint was not supplied to Appellant at furtherance if not
proposed that a mistake was sought to be rectified;
No charges were framed;
witness was examined; and
Inquiry Officer arrived at any finding that Appellant was guilty of the charges
levelled against him.
Tribunal or the High Court did not consider these aspects of the matter. The
impugned judgment, therefore, cannot be sustained.
the reasons aforementioned, the appeal is allowed. However, in the facts and
circumstances of this case, there will be no order as to costs.