Chandrama
Tewari Vs. Union of India [1987] INSC 341 (18 November 1987)
SINGH,
K.N. (J) SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)
CITATION:
1988 AIR 117 1988 SCR (1)1102 1987 SCC Supl. 518 JT 1987 (4) 398 1987 SCALE
(2)1058
CITATOR
INFO : E&R 1989 SC 885 (14)
ACT:
Disciplinary
proceedings resulting in dismissal from service-Whether null and void as a
result of failure of the Enquiry Officer to comply with the principles of
natural justice.
HEADNOTE:
%
Coal lying at the Pusauli Railway Station was fraudulently removed by some
person, giving out his name as Shambhu Tiwari, a coal contractor. A criminal
case was registered, but on account of absence of reliable evidence final
report was submitted. During the preliminary enquiry held by the Department, it
was found that Chandrama Tewari, the appellant, who was posted as a fireman at
Moghulsarai in the Northern Railway, had removed the coal posing himself as
Shambhu Tiwari. A charge-sheet was issued to the appellant.
An
Enquiry Officer was appointed before whom evidence was recorded. The appellant
was afforded full opportunity of cross-examining the witnesses. The Enquiry
Officer held the appellant guilty of the charges framed against him. The
punishing authority accepted the report of the enquiry officer and passed
orders, dismissing the appellant from service. The appellant filed a civil suit
for a declaration that the punishment of dismissal was illegal and
unconstitutional mainly on the ground that the enquiry had been held in
violation of the principles of natural justice and he was denied reasonable
opportunity of defence, inasmuch as a copy of paper No. 5, mentioned in the
Memo of charges, had not been supplied to him.
The
trial court decreed the suit. The decree of the trial court was confirmed in
appeal by the District Judge.
On
a second appeal by the Union of India, the High Court set aside the decisions
of the subordinate courts, holding that the appellant had been afforded
reasonable opportunity of defence and there had been no violation of the
principles of natural justice in the enquiry. The appellant appealed to this
Court against the order of the High Court.
Dismissing
the appeal, the court, 1103 ^
HELD:
It is not necessary that each and every document must be supplied to the delinquent
government servant facing charges; instead, only material and relevant
documents are necessary to be supplied to him. If a document even though
mentioned in the Memo of charges is not relevant to the charges or if it is not
referred to or relied upon by the enquiry officer or the punishing authority in
holding the charges proved against the government servant, no exception can be
taken to the validity of the proceedings or the order passed on the ground of
non-supply of the copy of the order.
If
a document is not used against the party charged, the ground of violation of
principles of natural justice cannot be successfully raised. Violation of the
principles of natural justice arises only when a document, a copy of which may
not have been supplied to the party charged, is used in recording findings of
guilt against him. [1105G-H; 1106A-B] Copy of paper No. 5, mentioned in the
charge-sheet, was not supplied to the appellant and he was not permitted to
inspect the same. But that document was not considered, or relied upon by the
enquiry officer in recording the findings against the appellant. Therefore, the
paper No. 5 was not a material or relevant document, and denial of a copy of
that document did not prejudice the appellant and there was no violation of the
principles of natural justice involved in the case. The enquiry was fair.
[1109D-E] State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623;
Trilokinath
v. Union of India and Ors., [1967] SLR 759;
State
of Assam & Anr. v. Mahendra Kumar Das & Ors., [1971] 1 SCR 87; State of
Punjab v. Bhagat Ram, [1975] 2 SCR 370;
State
of Uttar Pradesh v. Mohd. Sharif, AIR 1982 SC 937 and Kashinath Dikshita v.
Union of India and Ors., [1986] 3 SCC 229; relied upon by the appellant.
Civil
Appellate Jurisdiction: Civil Appeal No. 146 of 1981.
From
the Judgment and Order dated 10.5.1979 of the Allahabad High Court in S.A. No.
512 of 1975.
M.K.
Ramamurthi, Syed Ali Ahmad, Mrs. Jayashree Ahmad, Syed Tanweer Ahmad and Mohan
Pandey for the Appellant.
V.C.
Mahajan, Hemant Sharma and C.V. Subba Rao for the Respondent.
1104
The Judgment of the Court was delivered by SINGH, J. The short question which
arises in this appeal is whether the disciplinary proceedings taken against the
appellant resulting in his dismissal are null and void as the Enquiry Officer
failed to comply with the principles of natural justice in holding the enquiry.
The question relating to the non-compliance of principles of natural justice is
founded on the grievance that a copy of paper No.
5
although mentioned in the memo of charges was not supplied to the appellant,
and that he was not permitted to inspect the same. A learned single Judge of
the High Court has answered the question against the appellant. Hence this
appeal.
The
appellant was posted as fireman at Moghulsarai in Northern Railway in May,
1964. On 28th May 1964 coal lying at Pusauli Station was fraudulently removed
by some person giving out his name as Shambhu Tiwari. A criminal case was
registered, but on account of absence of reliable evidence, a final report was
submitted. It appears that during the preliminary enquiry held by the
Department it was found that Chandrama Tewari, the appellant had removed the
coal lying at Pusauli Station posing himself as Shambhu Tiwari, a coal contractor.
On completion of the preliminary enquiry a charge sheet was issued to the
appellant on 6.2.1967. The appellant filed reply to the charges denying the
same. An Enquiry Officer was appointed before whom evidence was recorded and
the appellant was afforded full opportunity of cross-examining the witnesses.
The Enquiry Officer submitted his report holding the appellant guilty of
charges framed against him. The punishing authority accepted the enquiry report
and issued orders on 27.6.1969 dismissing the appellant from the service. The
appellant filed a civil suit in the Trial Court for a declaration that the
punishment of dismissal awarded to him was illegal and unconstitutional mainly
on the ground that the enquiry had been held in violation of the principles of
natural justice and he was denied reasonable opportunity of defence. A number
of other grounds were also raised in the suit which need not be adverted as the
controversy now is confined to the question of violation of the principles of
natural justice alone. The trial court decreed the appellant's suit on
31.1.1974. The decree of the trial court was confirmed in appeal by the
District Judge by his order dated 2.11.1974. On a second appeal being filed by
the Union of India the High Court set aside the judgment and decree of the
subordinate courts on the findings that the appellant had been afforded
reasonable opportunity of defence and there was no violation of any principles
of natural justice in the enquiry.
1105
Learned counsel for the appellant Shri M.K. Ramamurthy contended that the memo
of charges issued to the appellant expressly mentioned that paper No. 5 was
proposed to be relied by the Department against the appellant but in spite of
demand being made by the appellant a copy of that document was not supplied to
him nor was he permitted to inspect the same. In the absence of that document
the appellant was handicapped in cross-examining Shri A.C. Das, Dy. S.P.,
S.P.E. He further urged that failure to supply the copy of paper No. 5 was in
violation of the principles of natural justice rendering the proceedings,
resulting in the order of dismissal as void. He placed reliance on decisions of
this Court in State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623;
Trilokinath v. Union of India & Ors., [1967] SLR 759; The State of Assam
& Anr. v. Mahendra Kumar Das & Ors., [1971] 1 SCR 87; State of Punjab
v. Bhagat Ram, [1975] 2 SCR 370; State of Uttar Pradesh v. Mohd. Sharif; AIR
1982 SC 937 and Kashinath Dikshita v. Union of India & Ors., [1986] 3 SCC
229.
We
have given our anxious consideration to the submissions made on behalf of the
appellant and we have further considered the aforesaid authorities referred to
by the learned counsel for the appellant but we do not find any merit in the
appellant's submissions to justify interference with the High Court's judgment.
Article 311 of the Constitution requires that reasonable opportunity of defence
must be afforded to a government servant before he is awarded major punishment
of dismissal. It further contemplates that disciplinary enquiry must be held in
accordance with the Rules in a just and fair manner. The procedure at the
enquiry must be consistent with the principles of natural justice. Principles
of natural justice require that the copy of the document if any relied upon
against the party charged should be given to him and he should be afforded
opportunity to cross-examine the witnesses and to produce his own witnesses in
his defence.
If
findings are recorded against the government servant placing reliance on a
document which may not have been disclosed to him or the copy whereof may not
have been supplied to him during the enquiry when demanded would contravene
principles of natural justice rendering the enquiry, and the consequential
order of punishment illegal and void. These principles are well settled by a
catena of decisions of this Court. We need not refer to them. However, it is
not necessary that each and every document must be supplied to the delinquent
government servant facing the charges instead only material and relevant
documents are necessary to be supplied to him. If a document even though
mentioned in the memo of charges is not relevant to the charges or if it is not
referred to or relied upon by the enquiry officer or the punishing 1106
authority in holding the charges proved against the government servant, no
exception can be taken to the validity of the proceedings or the order. If the
document is not used against the party charged the ground of violation of
principles of natural justice cannot successfully be raised. The violation of
principles of natural justice arises only when a document, copy of which may
not have been supplied to the party charged when demanded is used in recording
finding of guilt against him. On a careful consideration of the authorities
cited on behalf of the appellant we find that the obligation to supply copies
of documents is confined only to material and relevant documents and the
enquiry would be vitiated only if the non- supply of material and relevant
documents when demanded may have caused prejudice to the delinquent officer.
In
State of Madhya Pradesh v. Chintaman, the respondent who was a police officer
was dismissed from service on certain charges. The High Court of Madhya Pradesh
quashed the order of dismissal on the finding that the enquiry was held in
violation of the principles of natural justice in as much as the statement of
witnesses recorded in the preliminary enquiry were not supplied to the
concerned officer as a result of which he could not effectively cross- examine
the witnesses produced before the enquiry officer.
This
Court while upholding the view taken by the High Court, observed that the
departmental enquiries should observe rules of natural justice. The Court
referred to the observations of Venkatarama Aiyar, J. in Union of India v. T.R.
Verma, [1958] SCR 499 "stating it broadly and without intending it to be
exhaustive it may be observed that rules of natural justice require that a
party should have the opportunity of adducing all relevant evidence on which he
relies, that the evidence of the opponent should be taken in his presence, and
that he should be given the opportunity of cross-examining the witnesses examined
by that party, and that no material should be relied on against him without his
being given an opportunity of explaining them". Relying on the aforesaid
observations the Court held that right to cross-examine witnesses who give
evidence against a delinquent officer is a very valuable right and if effective
exercise of that right is prevented by the enquiry officer by not giving to
officer relevant document to which he is entitled, the enquiry cannot be said
to have been held in accordance with the principles of natural justice. In
Triloki Nath v. Union of India, it was held that if a public servant facing
enquiry was not supplied copies of documents it would amount to denial of
reasonable opportunity. In that case the statement of witnesses recorded during
the investigation of the criminal case registered against the delinquent
officer prior to the 1107 departmental proceedings had not been supplied to
him, as a result of which the delinquent officer was prejudiced in his defence
at the enquiry.
In
State of Assam and Anr. v. Mahendra Kumar Das & ors. J dismissal of a
police sub-inspector in pursuance of a disciplinary enquiry held against him
had been set aside by the High Court on the ground that the enquiry officer had
during the course of the enquiry consulted the Superintendent of Police,
Anti-Corruption Branch and had taken into consideration certain material
gathered from the Anti Corruption Branch, without making the said material
available to the sub-inspector. On appeal by the State of Assam this Court held
that it was improper for an enquiry officer during the conduct of an enquiry to
collect any material from outside sources and in not making that material
available to the delinquent officer. The Court observed that if the enquiry
officer collects material behind the back of the delinquent officer and such
material is relied upon by the enquiry officer without being disclosed to the
delinquent officer, the enquiry proceedings would be vitiated. After making
these observations this Court recorded a finding that the enquiry officer had
not taken into consideration the material contained in the records of
Anti-Corruption Branch, and therefore failure to supply the material of the
Anti Corruption Branch to the delinquent officer was of no consequence and it
could not vitiate the enquiry. The Court set aside the order of the High Court
on the finding that there had been no violation of principles of natural
justice.
In
State of Punjab v. Bhagat Ram, copies of statement of witnesses recorded during
investigation and produced at the disciplinary enquiry in support of the
charges framed against the delinquent officer were not supplied, instead a
synopsis of the statements had been supplied to him. This Court upheld the
order of the High Court on the finding that it was unjust and unfair to deny
the government servant copies of statement of witnesses recorded during
investigation and produced in support of the charges levelled against the
government servant. In the absence of the copies of the statement of witnesses
the government servant could not have opportunity of effective and useful
cross-examine of the witnesses produced during the disciplinary enquiry. The
Court observed that synopsis of statement did not satisfy the requirement of
giving the government servant a reasonable opportunity. Same view was taken by
this Court in State of Uttar Pradesh v. Mohd. Sharif, as in that case also
copies of the statement of witnesses recorded at the preliminary enquiry were
not furnished to 1108 the delinquent government officer, as a result of which
the delinquent officer could not effectively cross-examine the witnesses before
the enquiry officer.
In
Kashinath Dikshita v. Union of India & ors., this Court set aside the order
of dismissal of a police officer on the finding that during the departmental
proceedings the officer concerned was not supplied the copies of statements
made by the witnesses at a pre-enquiry stage and also the copies of the
documents on which reliance was placed in support of the charges, in spite of
specific request being made by the officer. The Court held that the order of
dismissal was violative of Article 311 (2) in as much as the officer had been
denied reasonable opportunity of defending himself. While setting aside the
order of dismissal the Court observed that whether or not refusal to supply
copies of documents or statements has resulted in prejudice to an officer
facing the departmental enquiry depends on the facts of each case. After making
this observation the Court examined the circumstances of that case and
concluded that since 38 witnesses were examined against the officer and a large
number of documents were relied upon against him and the disciplinary authority
should have supplied the copies of the statement of witnesses recorded during
the preliminary enquiry as we as the copies of the documents.
Wherein
agreement with the view taken in this decision It is now well settled that if
copies of relevant and material documents including the statement of witnesses
recorded in the preliminary enquiry or during investigation are not supplied to
the delinquent officer facing the enquiry and if such documents are relied in
holding the charges proved against the officer, the enquiry would be vitiated
for the violation of principles of natural justice.
Similarly,
if the statement of witnesses recorded during the investigation of a criminal
case or in the preliminary enquiry is not supplied to the delinquent officer,
as that would amount to denial of opportunity of effective cross- examination. It
is difficult to comprehend exhaustively the facts and circumstances which may
lead to violation of principles of natural justice or denial of reasonable
opportunity of defence. This question must be determined on the facts and
circumstances of each case. While considering this question it has to be borne
in mind that a delinquent officer is entitled to have copies of material and
relevant documents only which may include the copy of statement of witnesses
recorded during the investigation or preliminary enquiry or the copy of any
other document which may have been relied in support of the charges. If a
document has no bearing on the charges or if it is not relied by the 1109
enquiry officer to support the charges, or if such document or material was not
necessary for the cross-examination of witnesses during the enquiry, the
officer cannot insist upon the supply of copies of such documents, as the
absence of copy of such document will not prejudice the delinquent officer. The
decision of the question whether a document is material or not will depend upon
the facts and circumstances of each case.
In
the instant case there is no denying the fact that a copy of paper No. 5 as
mentioned in the charge sheet was not supplied to the appellant and he was not
permitted to inspect the same. It appears that paper No. 5 was the report
submitted by the Special Police Establishment in respect of the criminal case
of theft of coal, in which final report had been submitted. After submission of
final report in the criminal case disciplinary enquiry was initiated against
the appellant. Paper No. 5 (the report) was, however, not considered or relied
by the enquiry officer in recording findings against the appellant. We have
perused the copy of the report of the enquiry officer furnished to the Court by
the appellant but we do not find any reference to paper No. 5 therein. The
enquiry officer has not either referred to nor relied upon that report in
recording findings on the charges framed against the appellant. In this view the
report (paper No. 5) was not a material or relevant document and denial of copy
of that document could not and did not prejudice the appellant and there was no
violation of principles of natural justice. The appellant's grievance that in
the absence of report he could not effectively cross-examine Shri A.C. Das, Dy.
S.P. Of Special Police Establishment, the investigating officer, is not
sustainable. A copy of the statement as recorded by the enquiry officer has
been placed before us by the appellant on a perusal of the same we find that
Shri A.C. Das, was cross-examined at length in detail. His examination-in-chief
is confined to one page while his cross-examination runs into six full scape
typed pages. The appellant has failed to point out as to how he was prejudiced.
In our opinion the appellant was not handicapped in cross-examining Shri A.C.
Das, his grievance that he was not afforded reasonable opportunity of defence
is without any merit.
In
view of the above discussion we hold that the High Court was right, in holding
that the enquiry was fair and the principles of natural justice had not been
violated. The appeal fails and is accordingly dismissed. There will be no order
to costs.
S.L.
Appeal dismissed.
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