State
of U.P. Vs. Harendra Arora & Anr [2001]
Insc 262 (2 May 2001)
G.B.
Pattanaik & B.N. Agrawal B.N. Agrawal,J.
L.I.T.J
Judgment
passed by a Division Bench of the Allahabad High Court in a writ application
dismissing the same has been challenged in this appeal whereby order passed by
Uttar Pradesh Public Services Tribunal quashing order of dismissal of the
respondent no. 1 from service has been upheld.
Respondent
No. 1 Harendra Arora (hereinafter referred to as `the respondent), who was
temporarily appointed in the year 1960 as Assistant Engineer in the Irrigation
Department of the Uttar Pradesh Government, was confirmed on the said post and
in the year 1963 he was promoted as Executive Engineer. On 31.3.1970 the
respondent was served with a chargesheet by the Administrative Tribunal
incorporating therein various irregularities committed by him with regard to
the purchase of goods while he was posted as Executive Engineer at the
concerned station, requiring him to submit his explanation relating thereto
which was duly submitted. Upon receipt of the show cause, full-fledged enquiry
was conducted whereafter the Administrative Tribunal submitted its report to
the State Government recording a finding therein that the charge was
substantiated and recommending dismissal of the respondent from service, upon
receipt of which the State Government issued a show cause to the respondent as
to why he be not dismissed from service. Pursuant to the said notice, the respondent
submitted his reply to the show cause notice whereupon the State Government
sent the reply to the Administrative Tribunal for its comments and upon receipt
of the same, order was passed on 13.3.1973 dismissing the respondent from
service which order was challenged by the respondent before the High Court by
filing a writ application and the same having abated in view of the coming into
force of the U.P. State Public Services Tribunal Act, 1976, a claim petition
was filed by the respondent before the U.P. State Public Services Tribunal
challenging his aforesaid order of dismissal. The Tribunal allowed the claim
petition and quashed the order of dismissal principally on the ground that copy
of the enquiry report, as required under Rule 55-A of Civil Services
(Classification, Control and Appeal) Rules, 1930 as amended by the Government
of Uttar Pradesh, was not furnished to the delinquent against which order when
a writ application was filed on behalf of the State, a Division Bench of the
High Court dismissed the same upholding order of the Tribunal.
Hence this
appeal by special leave.
Learned
counsel appearing on behalf of the appellant in support of the appeal submitted
that in view of the judgment rendered by a Constitution Bench of this Court in
the case of Managing Director, ECIL, Hyderabad & Ors., vs. B. Karunakar
& Ors., (1993) 4 SCC 727, merely because an enquiry report has not been
furnished to the delinquent the same would not invalidate the order of
dismissal unless it is shown that the delinquent has been prejudiced thereby
and in the present case there is nothing to show that the respondent has been
prejudiced, as such setting aside the order of dismissal of the respondent from
service was uncalled for. Learned counsel appearing on behalf of the
respondent, on the other hand, submitted that the law laid down in the case of
ECIL has no application to this case as according to the set of rules governing
service condition of the respondent, there was requirement of furnishing copy
of proceedings of enquiry, which would obviously include the enquiry report,
whereas in the case of ECIL there was no such requirement under the statutory
rules, rather the requirement was by virtue of interpretation put forth upon
Article 311(2) of the Constitution of India by a three Judge Bench of this
Court in the case of Union of India & Ors. the case of ECIL, and
consequently the prejudice theory as laid down in the case of ECIL will not
apply to the present case and the order was rightly quashed for mere infraction
of the rule in not furnishing copy of the enquiry report.
Thus,
in view of the rival contentions, the following question arises for our
consideration:- Whether law laid down in the case of ECIL, to the effect that
the order awarding punishment shall not be liable to be set aside ipso facto on
the ground of non-furnishing of copy of the enquiry report to the delinquent
unless he has been prejudiced thereby, would apply to those cases also where
under the statutory rules there is requirement of furnishing copy of the
enquiry report to the delinquent.
For
appreciating the question, it would be necessary to refer to the genesis of the
law on the subject of furnishing the report of enquiry officer to the
delinquent. The law on the subject can be classified in two compartments one is
requirement to furnish the enquiry report under the statute and another will be
according to the principles of natural justice. So far as statutory requirement
is concerned, under Public Servants (Inquiries) Act, 1850 a provision was made
for a formal and public inquiry into the imputation of misbehaviour against pubilc
servants. While the said Act continued to be on the statute book, the
Government of India Act, 1919 was enacted and sub-section (2) of Section 96-B
thereof authorised the Secretary of State in Council to make rules regulating
their conditions of service, inter alia, discipline and conduct pursuant to
which the Civil Services Classification Rules, 1920 were framed and Rule XIV
whereof provided that order awarding punishment of dismissal, removal or
reduction in rank shall not be passed without a departmental inquiry in which a
definite charge in writing has to be framed, opportunity has to be given to
adduce evidence and thereafter finding has to be recorded on each charge, but
there was no requirement under the Rules for hearing the delinquent against the
action proposed to be taken on the basis of finding arrived at in the inquiry.
The
aforesaid Rules were followed by Civil Services (Classification, Control and
Appeal) Rules, 1930 wherein similar provision was made in rule 55 thereof.
Thereafter, in Section 240 sub-section (3) of the Government of India Act,
1935, on the same lines, it was provided that the civil servant shall not be
dismissed or reduced in rank unless he had been given `reasonable opportunity
to show cause against action proposed to be taken in regard to him. It was,
therefore, held that in order that the employee had an effective opportunity to
show cause against the finding of guilt and the punishment proposed, he should,
at that stage, be furnished with a copy of finding of the enquiry authority.
The
aforesaid provision was virtually incorporated in Article 311(2) of the
Constitution. By the Constitution (Fifteenth Amendment) Act of 1963, the scope
of `reasonable opportunity was explained and expanded and for the expression
until he has been given reasonable opportunity to show cause against the action
proposed to be taken in regard to him, the expression except after an inquiry
in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges and where it is
proposed, after such inquiry, to impose on him any such penalty, until he has
been given reasonable opportunity of making representation on the penalty
proposed, but only on the basis of evidence adduced during such inquiry was
substituted. It would thus appear that the Fifteenth Amendment, for the first
time, in terms provided for holding an inquiry into the specific charges of
which information was given to the delinquent employee in advance and in which
he was given reasonable opportunity to defend himself against those charges.
The Amendment also provided for a second opportunity to the delinquent employee
to show cause against the penalty if it was proposed as a result of the
inquiry. The courts held that while exercising the second opportunity of
showing cause against the penalty, the delinquent employee was also entitled to
represent against the finding on charges as well. It appears that in spite of
this change, the stage at which the delinquent employee was held to be entitled
to a copy of the enquiry report was the stage at which the penalty was proposed
which was the law prevailing prior to the Amendment.
The
provisions of Article 311(2) were further amended by the Constitution
(Forty-second Amendment) Act, 1976 in which it was expressly stated that it
shall not be necessary to give such person any opportunity of making
representation on the penalty proposed. The 42nd Amendment while retaining the
expanded scope of the reasonable opportunity at the first stage, viz., during
the inquiry, as introduced by the Fifteenth Amendment of the Constitution, had
taken away the opportunity of making representation against the penalty proposed
after the inquiry. After the 42nd Amendment, a controversy arose as to whether
when the enquiry officer is other than the disciplinary authority, the employee
is entitled to a copy of the findings recorded by him before the disciplinary
authority applied its mind to the findings and evidence recorded or whether the
employee is entitled to the copy of the findings of the enquiry officer only
when disciplinary authority had arrived at its conclusion and proposed the
penalty. After the 42nd Amendment, there were conflicting decisions of various
High Courts on the point in issue and in some of the two Judge bench decisions
of this Court, it was held that it was not necessary to furnish copy of the
enquiry report. Thus for an authoritative pronouncement, the matter was placed
for consideration before a three Judge bench in the case of Mohd. Ramzan
(supra) in which it was categorically laid down that a delinquent employee is
entitled to be furnished with a copy of the enquiry report for affording him
reasonable opportunity as required under Article 311(2) of the Constitution and
in compliance of the principles of natural justice, and in case no such report
was furnished, the order was fit to be quashed, but it was directed that the
judgment shall be prospective and had no application to orders passed prior to
the date of judgment in Mohd. Ramzans case.
Thereupon,
as it was found that there was a conflict in the decisions of this Court in the
case of Kailash Chander Asthana v. State of U.P. (1988) 3 SCC 600, and Mohd. Ramzans
case, the matter was referred to the Constitution Bench in the case of ECIL
which formulated seven questions for its consideration which are enumerated
hereunder:-
(I)
Whether the report should be furnished to the employee even when the statutory
rules laying down the procedure for holding the disciplinary inquiry are silent
on the subject or are against it?
(ii)
Whether the report of the enquiry officer is required to be furnished to the
delinquent employee even when the punishment imposed is other than the major
punishment of dismissal, removal or reduction in rank?
(iii)
Whether the obligation to furnish the report is only when the employee asks for
the same or whether it exists even otherwise?
(iv)
Whether the law laid down in Mohd. Ramzan Khan case will apply to all
establishments Government and non- Government, public and private sector
undertakings?
(v)
What is the effect of the non-furnishing of the report on the order of
punishment and what relief should be granted to the employee in such cases?
(vi)
From what date the law requiring furnishing of the report, should come into
operation?
(vii)
Since the decision in Mohd. Ramzan Khan case has made the law laid down there
prospective in operation, i.e., applicable to the orders of punishment passed
after November 20, 1990 on which day the said decision was delivered, this
question in turn also raises another question, viz., what was the law
prevailing prior to November 20, 1990?.
Interpreting
Article 311(2) even after 42nd Amendment, it has been laid down categorically
by the Constitution Bench that when the enquiry officer is other than the
disciplinary authority, the disciplinary proceeding breaks into two stages. The
first stage ends when the disciplinary authority arrived at its conclusion on
the basis of evidence, enquiry officers report and delinquent officers reply to
it. The second stage begins when the disciplinary authority decides to impose
penalty on the basis of its conclusion. The employees right to receive the
report has been held to be a part of the reasonable opportunity of defending
himself in the first stage of the inquiry and after this right is denied to
him, he is, in fact, denied the right to defend himself and to prove his
innocence in the disciplinary proceeding. The Court held that denial of enquiry
officers report before the disciplinary authority takes its decision on the
charges is not only a denial of reasonable opportunity to the employee to prove
his innocence as required under Article 311(2) of the Constitution, but is also
a breach of the principles of natural justice which has been regarded as a part
of Article 14 of the Constitution by the two Constitution Benches in the cases
of Union of India vs. Tulsiram Patel, (1985) 3 SCC 398, and Charan Lal Sahu vs.
Union of India, (1990) 1 SCC 613. According to the decision in ECIL, said
principle will apply even to those cases where the statutory rules on the
question of furnishing copy of the enquiry report are either silent or prohibit
the same. In view of the aforesaid discussions, question no. [i] was answered
by the Constitution Bench as follows:- Since the denial of the report of the
enquiry officer is a denial of reasonable opportunity and a breach of the
principles of natural justice, it follows that the statutory rules, if any,
which deny the report to the employee are against the principles of natural
justice and, therefore, invalid. The delinquent employee will, therefore, be
entitled to a copy of the report even if the statutory rules do not permit the
furnishing of the report or are silent on the subject.
Question
no. (v), i.e., the effect of the non-furnishing of the enquiry report on the
order of punishment, has been answered by the Constitution Bench in paragraphs
30 and 31 of the judgment, relevant portion whereof reads thus:- 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.
Hence,
in all cases where the enquiry officers report is not furnished to the
delinquent employee in the disciplinary proceedings, the Courts and Tribunals
should cause the copy of the report to be furnished to the aggrieved employee
if he has not already secured it before coming to the Court/Tribunal and give
the employee an opportunity to show how his or her case was prejudiced because
of the non-supply of the report. If after hearing the parties, the
Court/Tribunal comes to the conclusion that the non-supply of the report would
have made no difference to the ultimate findings and the punishment given, the
Court/Tribunal should not interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside the order of punishment on the
ground that the report was not furnished as is regrettably being done at
present.
The
courts should avoid resorting to short cuts. Since it is the Courts/Tribunals
which will apply their judicial mind to the question and give their reasons for
setting aside or not setting aside the order of punishment, (and not any
internal appellate or revisional authority), there would be neither a breach of
the principles of natural justice nor a denial of the reasonable opportunity.
It is only if the Court/Tribunal finds that the furnishing of the report would
have made a difference to the result in the case that it should set aside the
order of punishment.
[Emphasis
added] Question nos. (vi) and (vii), i.e., from what date the law requiring
furnishing of the enquiry report should come into operation, whether from November 20, 1990 the date when judgment was
delivered in the case of Mohd. Ramzan, or even earlier to it and in case it was
held to apply prospectively, what was the law prevailing prior to November 20,
1990, have been answered specifically in paragraph 33, relevant portion whereof
reads thus:- It is for the first time in Mohd. Ramzan Khan case that this Court
laid down the law. That decision made the law laid down there prospective in
operation, i.e., applicable to the orders of punishment passed after November
20, 1990. The law laid down was not applicable to the orders of punishment
passed before that date notwithstanding the fact that the proceedings arising
out of the same were pending in courts after that date. The said proceedings
had to be decided according to the law prevalent prior to the said date which
did not require the authority to supply a copy of the enquiry officers report
to the employee. The only exception to this was where the service rules with
regard to the disciplinary proceedings themselves made it obligatory to supply
a copy of the report to the employee.
[Emphasis
added] Thus, according to the decisions of this Court in the case of Mohd. Ramzan,
as approved by the Constitution Bench in the case of ECIL, denial of enquiry
officers report would amount to denial of equal opportunity to the employee
within the meaning of Article 311(2) of the Constitution and is a breach of
principles of natural justice. Both the aforesaid decisions were dealing with a
case where there was no requirement under the rules to furnish copy of the
enquiry report to the delinquent and the decision in the ECIL case is silent on
the question as to what would be the effect of non-furnishing of copy of
enquiry report in cases where it is required to be furnished under the
statutory rules.
In the
present case, the competent authority passed the order of dismissal on
13.3.1973, as stated above, on which date, undisputedly, rule 55-A of Civil
Services (Classification, Control and Appeal) Rules, 1930 as amended and
substituted by the U.P. amendment (hereinafter referred to as the rules), was
as follows:- R.55-A.- After the inquiry against a government servant has been
completed, and after the punishing authority has arrived at provisional
conclusions in regard to the penalty to be imposed, the government servant
charged shall, if the penalty proposed is dismissal, removal or reduction, be
supplied with a copy of the proceedings prepared under rule 55 excluding the
recommendations, if any, in regard to punishment, made by the officer
conducting the inquiry and asked to show cause by a particular date, which
affords him reasonable time, why the proposed penalty should not be imposed on
him:
Provided
that, if for sufficient reasons, the punishing authority disagrees with any
part or whole of the proceedings prepared under rule 55, the point or points of
such disagreement, together with a brief statement of the grounds thereof,
shall also be communicated to the government servant charged, along with the
copy of the proceedings under rule 55.
[Emphasis
added] Perusal of the aforesaid rule would show that in a case of dismissal,
like the present one, a government servant is entitled to be supplied with a
copy of the proceeding prepared under rule 55, meaning thereby the enquiry
report as well.
From a
minute reading of the decision in the case of ECIL, it would appear that out of
the seven questions framed, while answering question nos. (vi) and (vii), the
Constitution Bench laid down that the only exception to the answer given in
relation to those questions was where the service rules with regard to the
enquiry proceedings themselves made it obligatory to supply a copy of the
report to the employee. While answering the other questions, much less answer
to question no. (v) which relates to prejudice, the Bench has nowhere
categorically stated that the answer given would apply even in a case where
there is requirement of furnishing a copy of the enquiry report under the
statutory rules. As stated above, while answering question nos. (vi) and (vii),
the Bench has expressly excluded the applicability of the same to the cases
covered by statutory rules whereas such exception has not been carved out in
answer to question no. (v) which shows that the Bench having found no
difference in the two contingencies one covered by Article 311(2) and another
covered by statutory rules has not made any distinction and would be deemed to
have laid down the law uniformly in both the contingencies to the effect that
if enquiry report is not furnished, the same ipso facto would not invalidate
the order of punishment unless the delinquent officer has been prejudiced
thereby more so when there is no rationale for making any distinction therein.
Thus,
from the case of ECIL, it would be plain that in cases covered by the
constitutional mandate, i.e., Article 311(2), non- furnishing of enquiry report
would not be fatal to the order of punishment unless prejudice is shown. If for
infraction of a constitutional provision an order would not be invalid unless
prejudice is shown, we fail to understand how requirement in the statutory
rules of furnishing copy of enquiry report would stand on a higher footing by
laying down that question of prejudice is not material therein.
The
matter may be examined from another view point.
There
may be cases where there are infractions of statutory provisions, rules and
regulations. Can it be said that every such infraction would make the
consequent action void and/or invalid? The statute may contain certain
substantive provisions, e.g., who is the competent authority to impose a
particular punishment on a particular employee. Such provision must be strictly
complied with as in these cases the theory of substantial compliance may not be
available.
For
example, where a rule specifically provides that the delinquent officer shall
be given an opportunity to produce evidence in support of his case after the
close of the evidence of the other side and if no such opportunity is given, it
would not be possible to say that the inquiry was not vitiated. But in respect
of many procedural provisions, it would be possible to apply the theory of substantial
compliance or the test of prejudice, as the case may be.
Even
amongst procedural provisions, there may be some provisions of a fundamental
nature which have to be complied with and in whose case the theory of
substantial compliance may not be available, but the question of prejudice may
be material. In respect of procedural provisions other than of a fundamental
nature, the theory of substantial compliance would be available and in such
cases objections on this score have to be judged on the touchstone of
prejudice. The test would be, whether the delinquent officer had or did not
have a fair hearing. In the case of Russel vs. Duke of Norfolk & Ors., 1949
(1) All E.R. 109, it was laid down by the Court of Appeal that the principle of
natural justice cannot be reduced to any hard and fast formulae and the same
cannot be put in a straitjacket as its applicability depends upon the context
and the facts and circumstances of each case.
Even
under general law, i.e., the Code of Civil Procedure, there are various
provisions, viz., Sections 99-A and 115 besides Order 21 Rule 90 where merely
because there is defect, error or irregularity in the order, the same would not
be liable to be set aside unless it has prejudicially affected the decision.
Likewise, in the Code of Criminal Procedure also, Section 465 lays down that no
finding, sentence or order passed by a competent court shall be upset merely on
account of any error, omission or irregularity unless in the opinion of the
court a failure of justice has, in fact, been occasioned thereby. We do not
find any reason why the principle underlying the aforesaid provisions would not
apply in case of the statutory provisions like Rule 55-A of the Rules in
relation to disciplinary proceeding. Rule 55-A referred to above embodies in it
nothing but the principles of reasonable opportunity and natural justice.
Some
decisions in this regard may be referred to. In the case of Ridge vs. Baldwin
& Ors., 1964 Appeal Cases 40, the House of Lords was considering a case
where a Chief Constable was dismissed from service without notice and inquiry
by the Watch Committee. The question was raised whether the decision was void
or merely voidable. The House of Lords laid down that such a decision given
without regard to the principles of natural justice was void. The violation in
that case, though a procedural one, was of a fundamental nature as it was a
case of total violation of the principles of natural justice.
In the
case of R v. Secretary of State for Transport, ex parte Gwent County Council,
[1987] 1 All E.R. 161, the Court of Appeal applied the test of prejudice in a
case of enhancement of toll charges over a bridge. The Act provided for a
public hearing before effecting increase. Dealing with a complaint of
procedural impropriety, the Court of Appeal held that unless prejudice is
established to have resulted from the procedural impropriety, no interference
was called for.
In the
case of Davis v. Carew-Pole & Ors., [1956] 1 Weekly Law Reports 833, it was
laid down that mere fact that a person appearing before a domestic Tribunal had
not been given formal notice of all the matters in which his conduct was to be
called in question, did not necessarily entitle him to contend successfully
that the proceedings were not conducted in accordance with the principles of
natural justice as in that case, no fact was in dispute in relation to the
other matters raised and in the circumstances it was held that the plaintiff
was not prejudiced by the lack of notice.
In the
case of Jankinath Sarangi vs. State of Orissa, 1969 (3) SCC 392, Hidayatullah,
C.J., speaking for the Court, while considering the question of prejudice in a
departmental proceeding, approved judgment of the High Court refusing to grant
relief in favour of the delinquent government servant on the ground that no
prejudice was caused to him and observed thus:- From this material it is argued
that the principles of natural justice were violated because the right of the
appellant to have his own evidence recorded was denied to him and further that
the material which was gathered behind his back was used in determining his guiltThere
is no doubt that if the principles of natural justice are violated and there is
a gross case this Court would interfere by striking down the order of dismissal;
but there are cases and cases. We have to look to what actual prejudice has
been caused to a person by the supposed denial to him of a particular
right...Anyway the questions which were put to the witnesses were recorded and
sent to the Chief Engineer and his replies were received. No doubt the replies
were not put in the hands of the appellant but he saw them at the time when he
was making the representations and curiously enough he used those replies in
his defence. In other words, they were not collected behind his back and could
be used to his advantage and he had an opportunity of so using them in his defence.
We do not think that any prejudice was caused to the appellant in this case by
not examining the two retired Superintending Engineers whom he had cited or any
one of them.
[Emphasis
added] In the case of K.L. Tripathi vs. State Bank of India & Ors., (1984)
1 SCC 43, while considering the question whether violation of each and every
facet of principles of natural justice has the effect of vitiating the inquiry,
this Court laid down that the inquiry held and the punishment imposed cannot be
said to be vitiated on account of an opportunity of cross-examination of
certain witnesses not having been afforded to the delinquent and observed
thus:- The basic concept is fair play in action administrative, judicial or
quasi-judicial. The concept of fair play in action must depend upon the
particular lis, if there be any, between the parties. If the credibility of a
person who has testified or given some information is in doubt, or if the
version or the statement of the person who has testified, is, in dispute, right
of cross-examination must inevitable form part of fair play in action but where
there is no lis regarding the facts but certain explanation of the
circumstances there is no requirement of cross-examination to be fulfilled to
justify fair play in action. When on the question of facts there was no
dispute, no real prejudice has been caused to a party aggrieved by an order, by
absence of any formal opportunity of cross-examination per se does not
invalidate or vitiate the decision arrived at fairly. This is more so when the
party against whom an order has been passed does not dispute the facts and does
not demand to test the veracity of the version or the credibility of the
statement.
[Emphasis
added] In the case of Sunil Kumar Banerjee vs. State of West Bengal & Ors.
(1980) 3 SCC 304, in a departmental proceeding a question was raised that the
delinquent who had not examined himself was not questioned by the enquiry
officer on the circumstances appearing against him in the evidence for the
purpose of enabling him to explain the same as required under rule 8(19) of the
relevant rules. The Court held that as the delinquent was fully alive to the allegations
against him and had dealt with all aspects of the allegations in his written defence,
he was not prejudiced by the failure of the enquiry officer to question him. As
such, the Court refused to interfere with the punishment awarded.
Sharma,
(1996) 3 SCC 364, there was a departmental proceeding against an officer in
which the punishment awarded was challenged on the ground that there was
violation of regulation 68(b)(iii) of the Bank Regulations which had statutory
force under which copies of statement of witnesses recorded earlier were
required to be furnished to a delinquent not later than three days before the
commencement of examination of witnesses by the enquiry officer, but no such
copy was at all supplied and a stand was taken that opportunity was afforded to
the delinquent to peruse the same and take notes therefrom though only half an
hour before the commencement of the enquiry proceedings. In these
circumstances, it was held that there was substantial compliance of the
regulation as such, the punishment awarded cannot be vitiated on account of
infractions of the aforesaid regulation in view of the fact that the
delinquent, expressly or by his conduct, would be deemed to have waived the
procedural provision which was of a mandatory character which was conceived in
his interest and not public interest and was not prejudiced thereby, following
the decision of this Court in the case of ECIL.
In the
case of Krishan Lal vs. State of J&K, (1994) 4 SCC 422, this Court was
dealing with a case where under Section 17(5) of Jammu & Kashmir
(Government Servants) Prevention of Corruption Act, 1962 before awarding
punishment of dismissal a government servant was entitled to be furnished with
a copy of the enquiry report which provision having been violated, the question
had arisen whether the order awarding punishment was vitiated.
Following
the Constitution Bench decision in the case of ECIL, this Court laid down that
if the delinquent has not suffered any prejudice by non-furnishing of the
report, the same would not vitiate the order of punishment and observed thus:-
We, therefore, hold that the requirement mentioned in Section 17(5) of the Act
despite being mandatory is one which can be waived. If, however, the
requirement has not been waived any act or action in violation of the same
would be a nullity. In the present case as the appellant had far from waiving
the benefit, asked for the copy of the proceeding despite which the same was
not made available, it has to be held that the order of dismissal was invalid
in law.
The
aforesaid, however, is not sufficient to demand setting aside of the dismissal
order in this proceeding itself because what has been stated in ECIL case in
this context would nonetheless apply. This is for the reason that violation of
natural justice which was dealt with in that case, also renders an order
invalid despite which the Constitution Bench did not concede that the order of
dismissal passed without furnishing copy of the inquiry officers report would
be enough to set aside the order.
Instead,
it directed the matter to be examined as stated in paragraph 31.
[Emphasis
added] Thus, from a conspectus of the aforesaid decisions and different
provisions of law noticed, we hold that provision in Rule 55- A of the Rules
for furnishing copy of enquiry report is procedural one and of a mandatory
character, but even then a delinquent has to show that he has been prejudiced
by its non observance and consequently the law laid down by the Constitution
Bench in the case of ECIL, to the effect that an order passed in a disciplinary
proceeding cannot ipso facto be quashed merely because a copy of the enquiry
report has not been furnished to the delinquent officer, but he is obliged to
show that by non-furnishing of such a report he has been prejudiced, would
apply even to cases where there is requirement of furnishing copy of enquiry
report under the statutory provisions and/or service rules.
Turning
now to the facts of the case on hand, it has to be seen whether by
non-furnishing of the enquiry report the delinquent officer has suffered any
prejudice.
Undisputedly,
after submission of enquiry report the State Government sent a show cause
notice to the delinquent pursuant to which he had shown cause and the
disciplinary authority after considering the said show cause, passed the order
of dismissal. It is not stand of the respondent that in absence of the enquiry
report he could not submit an effective show cause before the order of
dismissal was passed. Neither from the order passed by the Tribunal nor the
High Court it would appear that the respondent had raised this point there that
he could not file an effective show cause in the absence of enquiry report nor
it has been stated that in the show cause reply it was complained that the
delinquent had not been served with a copy of the enquiry report. From these
facts, it is not possible to hold that the respondent has been prejudiced by
non-furnishing of enquiry report.
For
the foregoing reasons, we are of the opinion that the High Court was not
justified in upholding order of the Tribunal whereby order of dismissal of the
respondent from service was quashed. Accordingly, the appeal is allowed and the
impugned orders are set aside, but there shall be no order as to costs.
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