Bal Mukund vs State of Rajasthan and Others

Veerender Singh Siradhana, J—Aggrieved of the order dated 7th January, 1994, passed by the Disciplinary Authority inflicting penalty of removal from the government service, confirmed by the Appellate Authority vide order dated 18th July, 1994; the petitioner has instituted the present writ application praying for the following relief(s):-

"(A) by an appropriate writ order or direction the Impugned order Annexure 1 & 2 passed by the respondents may kindly be quashed and set aside. (B) Any other order or direction which this Hon''ble court may deem just and proper be also passed in favour of the petitioner, with costs."

Briefly, the essential skeletal material facts necessary for appreciation of the controversy raised herein are: that the petitioner while working as Constable in the Police Department, at Police Station, Nayapura, Kota City, Kota, was served with a charge sheet on 11th February, 1992, under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the ''Rules of 1958'', for short). The petitioner was charged for having contracted marriage with Smt. Saguna Bai daughter of Shri Gashi Lal while having a living spouse i.e. Smt. Manju Bai daughter of Shri Ram Prasad Nayak, wife of the petitioner, and thus, violated Rule 25 of the Rajasthan Civil Services Conduct Rules, 1971 (hereinafter referred to as the ''Rules of 1971'', for short). Wife of the petitioner, Smt. Manju Bai, also levelled allegations for demand of motorcycle and a sum of Rs. 10,000/- (Rupees Ten Thousands) as dowry. A criminal case under Section 498A of IPC, was registered being Crime No. 428 of 1989, at Police Station, Nayapura, Kota. The Inquiry Officer conducted the inquiry strictly in compliance of the procedure prescribed under Rule 16 of the Rules of 1958, affording ample opportunity to the petitioner while returning a finding of guilt on the charges, as would be evident from the inquiry report dated 28th February, 1993. The Disciplinary Authority having considered the findings arrived at by the Inquiry Officer on the basis of the facts, materials and evidence adduced by the parties; by a detailed order, concurred with the findings of the Inquiry Officer, and imposed the penalty of removal from the government service vide order dated 7th January, 1994. The Appellate Authority, vide order dated 18 July, 1994, while dismissing the appeal preferred by the petitioner, confirmed the penalty inflicted.

During the course of hearing, on 1st November, 2012, the fact of non-supply of a copy of the inquiry report to the petitioner surfaced. In the backdrop of the verdict of the Hon''ble Apex Court of the land in the case of Union of India and others Vs. Mohd. Ramzan Khan, AIR 1991 SC 471 : (1991) 61 FLR 736 : (1990) 4 JT 456 : (1991) 1 LLJ 29 : (1990) 2 SCALE 1094 : (1991) 1 SCC 588 : (1990) 3 SCR 248 Supp : (1991) 1 SLJ 196 : (1991) 1 UJ 163 , the Court, directed the State-respondents to furnish a copy of the inquiry report to the petitioner so as to have his response as to whether any prejudice has been caused for non-supply of the inquiry report?

In response to the inquiry report, the petitioner filed an additional affidavit stating that the order of removal of service passed by the Disciplinary Authority, was made without affording an opportunity of hearing as well as without considering his objections/reply to the inquiry report. The State-respondents have also filed their response to the additional affidavit placing on record the copies of the order-sheets of the inquiry proceedings (Annexure-R/1), as well as a copy of the final reply dated 27th February, 1993, submitted by the petitioner (Annexure-R/2).

Neither the counsel nor the petitioner has put in appearance to prosecute the writ proceedings.

I have carefully considered the pleadings of the writ application and heard the learned counsel appearing on behalf of the State-respondents as well as considered the materials available on record. Submissions made by the counsel for the State-respondents at Bar were given earnest consideration.

From the order-sheets drawn by the Inquiry Officer during the course of inquiry proceedings, it is evident that the petitioner along with his defence representative, was present on 30th May, 1992. Statements of Smt. Manju, wife of the petitioner, Smt. Prem Bai, and Shri Giriraj Prasad, were recorded in the presence of the petitioner as well as his defence representative on 9th July, 1992. Presence of the petitioner along with his defence representative has been specifically recorded by the Inquiry Officer on 23rd July, 1992, 30th July, 1992, 7th August, 1992, 17th August, 992, 24th August, 1992, 17th October, 1992. Statement of PW-8, Moti Lal, were recorded on 15th January, 1993, in presence of the petitioner. On 5th February, 1993, statements of Shri Bhagwan Lal Soni, I.P.S., S.P., Bundi, were also recorded in the presence of the petitioner. On 26th February, 1993, the petitioner filed an application declining to produce any document or witness in defence. The matter was posted to 27 February, 1993, for reply of the petitioner and the petitioner did submit his reply, which is available on record.

The order-sheets drawn by the Inquiry Officer and material available on record, makes it more than evident that the petitioner, along with his defence representative, was afforded ample opportunity of hearing and to put forth his defence.

The Inquiry Officer on a careful consideration of the materials available on record and the evidence adduced by the parties, during the course of the inquiry proceedings, on a proper analysis of the facts and the evidence, recorded the findings while returning a finding of guilt on the charges leveled against the petitioner.

The fact that the petitioner contracted a second marriage with Smt. Sagum Bai, was specifically stated by his wife, Smt. Manju Bai. An Invitation Card on the occasion of ''Gona'' of Smt. Sagum Bai with the petitioner, was also placed on record as documentary evidence. The petitioner along with his defence representative were afforded opportunity of cross-examination while the statements of witnesses were recorded in support of the prosecution case. Thus, there is no illegality in the decision making process.

Keeping in view the mandate of the Hon''ble Apex Court of the land in the case of Mohd. Ramjan (supra), a copy of the inquiry report was also made available to the petitioner. In response, the petitioner filed an additional affidavit, which has been responded to by the State-respondents. Nothing material could be brought to the notice of this Court so as to sustain the statement of ''prejudice'' caused to the petitioner on account of non-furnishing of the copy of the inquiry report at the relevant time. Be that as it may, a copy of the inquiry report furnished to the petitioner and its response has been taken on record as an additional affidavit.

The petitioner was furnished with a copy of the inquiry report as directed by this Court on 1st November, 2012. An additional affidavit was filed by the petitioner after having received the copy of the inquiry report dated 28th February, 1993. In an attempt to plead and prove ''prejudice'', the petitioner has stated in the additional affidavit that the inquiry report was not furnished to him to ensure ''prejudice'' at the instance of his wife Manju, mother-in-law and father-in-law as well as other interested persons.

It is further stated by the petitioner that he was not allowed by the Inquiry Officer to enter the room, thus depriving him of cross-examination of the prosecution witnesses. According to the petitioner, he was prevented from confronting the witnesses with the documents ''in his possession''. Furthermore, no opportunity of hearing was allowed to him either by the Disciplinary Authority or by the Appellate Authority.

On a close scrutiny of the materials available on record, the statements made in the additional affidavit are found contradictory to the final reply filed by the petitioner on 27th February, 1993, which has been placed on record as Annexure-R/2 with the response to the additional affidavit by the State-respondents. In the final reply, submitted by the petitioner on 27th February, 1993, there is not even a whisper of the facts as detailed out in the additional affidavit. All that the petitioner has stated in the final reply on 27th February, 1993, is that no independent witness was examined during the course of inquiry proceedings by the Inquiry Officer. The police was under pressure on account of political influence of his wife Manju and in-laws, which resulted into filing of the charge-sheet in the crime. The petitioner further prayed for in the final reply that the disciplinary proceedings be deferred till conclusion of the trial of the criminal case.

The statements made in the additional affidavit are also contrary to the order-sheets available on record from where it is reflected that the petitioner along with his defence representative was present and actively participated in the inquiry proceedings, but did not raise any objection of the nature as pleaded in the additional affidavit.

Having considered the statement made in the additional affidavit alleging ''prejudice'', but I do not find any ground sustainable in law to sustain the claim of ''prejudice'', as pleaded in the additional affidavit so as to call for any interference in the action of the respondents while inflicting the penalty of removal from service for the proved charges.

By now, it is well settled that failure of supply of the inquiry report, ip-so-facto, would not render the proceedings illegal or invalid. Explaining the settled proposition of law in the backdrop of the earlier opinion, the Hon''ble Supreme Court in the case of Sarv U.P. Gramin Bank Vs. Manoj Kumar Sinha, AIR 2010 SC 2491 : (2010) 125 FLR 378 : (2010) 2 JT 218 : (2010) 2 LLJ 641 : (2010) 2 SCALE 255 : (2010) 3 SCC 556 : (2010) 1 SCC(L&S) 861 : (2010) 2 SCR 512 : (2010) 4 SLR 674 : (2010) 3 UJ 1176 , held thus:-

"33. In the case of ECIL (supra) a constitution bench of this Court reiterated the ratio of law in Mohd. Ramzan Khan case (supra) as follows:

As held by this Court in Union of India v. Mohd. Ramzan Khan, when the inquiring authority and the disciplinary authority are not one and the same and the disciplinary authority appoints an inquiring authority to inquire into charges levelled against a delinquent officer who holds inquiry, finds him guilty and submits a report to that effect to the disciplinary authority, a copy of such report is required to be supplied by the disciplinary authority to the delinquent employee before an order of punishment is imposed on him. It was also held that non-supply of report of the inquiry officer to a delinquent employee would be violative of principles of natural justice. The Court observed that after the Constitution (Forty-second Amendment) Act, 1976, second opportunity contemplated by Article 311(2) of the Constitution had been abolished, but principles of natural justice and fair play required supply of adverse material to the delinquent who was likely to be affected by such material. Non-supply of report of the inquiry officer to the delinquent would constitute infringement of the doctrine of natural justice.

The ECIL matter was placed before the Constitution Bench as the attention of the Court was invited to a three-Judge Bench decision of this Court in Kailash Chander Asthana Vs. State of U.P. and Others, AIR 1988 SC 1338 : (1988) 2 JT 291 : (1988) 2 LLJ 219 : (1988) 1 SCALE 884 : (1988) 3 SCC 600 : (1988) 2 UJ 260 wherein it was held that non-supply of the report would not ipso facto vitiate the order of punishment in the absence of prejudice to the delinquent.

Upon a detailed consideration of the entire case law this Court laid down certain principles which are as follows:

In this view of the matter, the Court dismissed the writ petition. It would thus be clear that the contention before this Court in that case was that the copy of the report of the inquiring authority was necessary to show cause at the second stage, i.e., against the penalty proposed. That was also how the contention was understood by this Court. The contention was not and at least it was not understood to mean by this Court, that a copy of the report was necessary to prove the innocence of the employee before the disciplinary authority arrived at its conclusion with regard to the guilt or otherwise on the basis of the said report. Hence, we read nothing in this decision which has taken a view contrary to the view expressed in E. Bashyan case by a Bench of two learned Judges or to the view taken by three learned Judges in Union of India v. Mohd. Ramzan Khan.

In Mohd. Ramzan Khan case the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty-second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer''s report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non-furnishing of the report amounts to a violation of the rules of natural justice. However, after taking this view, the Court directed that the law laid down there shall have prospective application and the punishment which is already imposed shall not be open to challenge on that ground. Unfortunately, the Court by mistake allowed all the appeals which were before it and thus set aside the disciplinary action in every case, by failing to notice that the actions in those cases were prior to the said decision. This anomaly was noticed at a later stage but before the final order could be reviewed and rectified, the present reference was already made, as stated above, by a Bench of three learned Judges. The anomaly has thus lent another dimension to the question to be resolved in the present case.

The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak v. Union of India it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far-reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.

In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

What emerges from the above survey of the law on the subject is as follows.

Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer''s report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the ''reasonable opportunity'' incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer''s report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer''s report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other.

The aforesaid ratio of law has been reiterated by this Court in Haryana Financial Corporation and Anr. (supra). This Court again critically examined the entire issue and observed as follows:

From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer''s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.

In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply the inquiry officer''s report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the inquiry officer''s report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed.

The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it The Court also noted the submission of the Corporation that there was "no whisper" in the writ petition showing any prejudice to the delinquent as required by B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is "writ large".

In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated: (SCC p. 757, para 30)

(v) ... 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.

It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept of "natural justice" is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the straitjacket of a rigid formula.

Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirements have not been complied with. The Court notices a number of judgments in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows:

From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent, employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."

Restriction to contract second marriage has been specifically contemplated under Rule 25 of the Rules of 1971, which reads thus:-

"25. Restriction regarding marriage (1) No Government servant shall enter into, or contract a marriage with a person having a spouse living.

(2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person:

Provided that the Government may permit a Government servant to enter into or contract, any such marriage as is referred to in sub-rule (1) or sub-rule (2) if it is satisfied that:

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage and

(b) there are other grounds for so doing.

(3) A Government servant who has marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government."

A glance of the text of Rule 25, as extracted herein above, would reveal that no government servant shall enter into, or contract a marriage with a person having a spouse living. Even if, the marriage is permissible under the personal law, applicable to such government servant and the other party to the marriage, permission is required from the Government to enter into or contract, any such marriage.

It is a trite law that the scope of judicial review in the matter of departmental inquiry wherein the Disciplinary Authority and the Appellate Authority, are the final fact finding authorities, interference can be made only in the event the findings arrived at are found to be perverse or irrelevant materials was considered while ignoring the relevant materials.

The scope and extent of interference with the quantum of punishment has been subject matter of a catena of judgments by the Hon''ble Supreme Court. It has been held in no uncertain words by the Hon''ble Supreme Court that such an interference cannot be a routine matter. Referring to the observation of Lord Greene in the famous case ofAssociated Provincial Picture Houses Limited v. Wednesbury Corporation, (1948) 1 K.B. 223 ; wherein it has been observed that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. An interference was not permissible unless the order was contrary to law or relevant factors were not considered or irrelevant factors were considered or the decision was one which no reasonable person could have arrived at. The principles have been consistently followed while conducting scrutiny of the validity of an administrative action.

In the case of Om Kumar and Others Vs. Union of India, (2000) 3 JT 92 : (2000) 7 SCALE 524 : (2001) SCC(L&S) 1039 : (2000) 4 SCR 693 Supp , the Hon''ble Supreme Court held that ''proportionality'' will have to be considered in the backdrop of the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures have been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order. Where the administrative action is assailed for being arbitrary under Article 14; in cases where punishments in disciplinary cases are challenged, the criteria for scrutiny would be as to whether the administrative order is ''rational'' or ''reasonable'' and whether it stands the Wednesbury test. In such matters, the Courts are confined only to a ''secondary role'' while examining the ''primary role'' of the administrator as to whether he is acted illegally or has omitted relevant factors or has considered irrelevant factors or the view arrived at is one which no reasonable person could have arrived at. This principle has been reiterated by the Hon''ble Supreme Court time and again and the common feature that runs through all the decisions on the subject matter, is to the effect that the Court should not interfere with the decision of the administration until and unless the decision was illogical or suffered with procedural impropriety or was so shocking, to the conscious of the Court, that same was in defiance of logic or moral standard. Thus, the scope of judicial review and scrutiny in such matters is limited only to the decision making process. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless is found to be in defiance of logic or moral standard or shocks the conscious of the Court, the same is not open for interference.

In the instant case at hand, from the materials available on record, the enquiry conducted, while returning the finding of guilt and the decision arrived at by the Disciplinary Authority, in terminating the services of the petitioner, cannot be faulted on any count as there is no element of any illegality in decision making process. The penalty imposed cannot be said to be disproportionate by any stretch of imagination, calling for any interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India.

For the reasons and discussions herein above, the writ petition is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.