G.R. Soni vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—The petitioner in Writ Petition (S) No. 3599 of 2005 seeks quashing of the order dated 15-2-2001 (Annexure A/1), whereby on approval by the Public Service Commission (for short "the PSC") on the recommendation made by the State Government, he was compulsorily retired from service under the provisions of Rule 10 (vii) of the CG. Civil, Services (Classification Control and Appeal) Rules 1966 (for short "the Rules 1966'') with consequential benefits.

The facts, in nutshell, in Writ Petition (S) No. 3599 of 2005, are that the petitioner working as Naib Tahsildar was charge-sheeted for various charges leveled against him and after completion of the departmental enquiry; the petitioner was terminated from services by order dated 21-12-1992 (Annexure A/2). The petitioner preferred a departmental appeal on various grounds inter alia that the departmental enquiry was conducted without complying with the provisions of the principles of natural justice. The Appellate Authority by order dated 29-11-1996 (Annexure A/3) quashed the order dated 21-12-1992 and reinstated the petitioner in service and remanded the matter to the disciplinary authority with a direction to supply the enquiry report to the petitioner along with show cause notice before passing the final order A show cause notice was subsequently issued to the petitioner on 13-1-1997 (Annexure A/4). The petitioner demanded several documents, but the same were not made available to him. The petitioner submitted his reply on 30-9-1997 (Annexure A/5) to the show cause notice. In the meantime, being aggrieved by the remand order dated 29-11-1996 (Annexure A/3), the petitioner preferred an application, being Original Application No.968 of 1999 before the State Administrative Tribunal, (for short "the Tribunal"). The Tribunal, by order dated 28-7-2000 (Annexure A/6) decided the said application directing the respondents that the departmental enquiry of the petitioner may be completed within a period of 272 months from 28-7-2000. A contempt petition was filed against non-compliance of the order dated 28-7-2000 before the Tribunal. The Tribunal after admitting the contempt petition, issued notice to the respondents. During pendency of the contempt proceedings, on 19-2-2001 the respondents applied to the Tribunal for extension of time to comply with the order dated 28-7-2000. The departmental enquiry was completed accordingly. The proceedings in the contempt petition were dropped on 2-8-2002. Consequently, the impugned order dated 15-2-2001 was passed.

Being aggrieved by the order dated 15-2-2001 (Annexure A/1), the petitioner filed an application, being Original Application No.184 of 2001 before the Tribunal. After dissolution of the Tribunal, the matter was transferred to this Court and re-numbered as Writ Petition (S) No. 3599 of 2005.

The brief facts, in nutshell, in Writ Petition (S) 5125 of 2005, are that the petitioner in this petition seeks a direction to the respondents for granting salary, arrears and allowances during the period of termination of service from 21-12-1992 to 15-12-1996 with interest as the order dated 21-12-1992 passed by the Disciplinary Authority was set aside by the Appellate Authority on 15-12-1996. The petitioner has filed an application, being Original Application No, 842 of 2002, before the Tribunal. After dissolution of the Tribunal, this petition was also transferred to this Court and re-numbered as Writ Petition (S) No. 5125 of 2005.

Having regard to the facts that both the writ petitions filed by the petitioner involved the same question of law based on common facts, the same are being considered and disposed of by this common order.

Mr. Soni, petitioner in person, would submit that the impugned order dated 15-2-2001 (Annexure A/1) is bad in law as the petitioner was not supplied with relevant documents as required by him. The impugned order dated 15-2-2001 is illegal, as the departmental enquiry was not conducted fairly and healthy as in the impugned order it was stated that the benefits with regard to payment of salary and allowances from the period he was originally terminated by the order dated 21-12-1992 (Annexure A/2) till the order was quashed. Consequently he was reinstated, pursuant to the order dated 29-11-1996 (Annexure A/3) shall be considered under the Fundamental Rule (for short "the FR") 54. The opinion of the PSC has not been disclosed, thus, the impugned order is void ab initio. The mala fide intention of the respondent-authorities may be seen as the respondent authorities did not complete the departmental enquiry within a period of 21/2 months as directed by the Tribunal; in Original Application No. 968 of 1999 passed on 28-7-2000. The petitioner was punished with compulsory retirement from service without serving notice three months before the retirement as prescribed under the FR 56.

Mr. Soni would further submit that in the enquiry no presenting officer was appointed. Thus, the enquiry is vitiated. The petitioner was not afforded an opportunity of hearing after enquiry report was submitted on the question of imposition of punishment. Petitioner would next submit that the PSC should have given opportunity of hearing to the petitioner before approving the recommendation made by the State Government. The Secretary to the Government should have also given opportunity of hearing before sending the recommendation to the PSC for approval. The compulsory retirement can be imposed only under the provisions of the FR 56 wherein /three months show cause notice is a pre-condition. The petitioner was entitled to relevant documents at every stage of hearing even after report was submitted. Mr. Soni has placed reliance on the decision of Gujarat High Court in B.J. Jadav v. State of Gujarat & Ors., 2005 LAB.I.C. 3706 . The ratio laid down by the Gujarat High Court has been considered subsequently by the Supreme Court in Union of India (UOI) and Another Vs. T.V. Patel, wherein it has been held that copy of the opinion of the PSC need not be supplied to the delinquent employee before passing the order of penalty.

Per contra, Mr. Y.S. Thakur, learned Dy. Advocate General, appearing on behalf of the State would submit that the respondent/ State had treated the period of initial termination dated 21-12-1992 till the date of reinstatement on 15-12-1996 as ''no work no pay''. Mr. Thakur would further submit that the petitioner was supplied with all the documents relied upon in the enquiry along with the charge sheet dated 30-11-1998. Charges No. 1 & 4 were found partially proved and charges No.2 & 3 were found fully proved. The petitioner has not raised any dispute with regard to the enquiry report as to whether any finding has been Recorded on the basis of no evidence or the enquiry report is perverse. The case of the petitioner is that at the stage of second show cause notice neither the petitioner was supplied with the required documents i.e. twenty points programme register, Patwari records, Nazir''s register, nor the petitioner was allowed to have inspection. The second show cause notice is not with regard to the finding of innocence of the petitioner, but with regard to imposition of punishment.

Mr. Thakur, would next submit that the State has already taken decision under the provisions of the FR 54, 54-A & 54-B vide order dated 6-9-2002 that the petitioner would not be entitled to payment of salary on the principle of ''no work no pay''. Delay in completion of enquiry does not smack of any mafa fide, as the application was moved to the Tribunal for extension of time and the same was granted. The petitioner is not entitled to any opportunity of hearing either by the Secretary to the Government while sending recommendation to the PSC for approval or by the PSC while approving the recommendation. It is not necessary to give a copy of the opinion of PSC and the petitioner has no right to have copy of such opinion. The FR 56 as claimed by the petitioner is not applicable to the facts of the present case, as the petitioner has not been retired compulsorily under the provisions of the FR 56. In the present case the compulsory retirement was imposed by way of major penalty, as enshrined under Rule 10 (vii) of the Rules, 1966. Thus, there was no question of three months notice in advance. The petitioner has not established mala fide on production of some documents or materials.

I have heard Mr. Soni, petitioner in person and learned counsel appearing for the respondents, perused the pleadings and the documents appended thereto.

Having regard to the facts situation of the case and having heard the parties, I am of the considered opinion that the controversy involved in these petitions need consideration and decision on the following points:

� Firstly; whether the petitioner is entitled to documents at the stage of second show cause notice.

� Secondly; whether the petitioner was entitled to an opportunity hearing before the Secretary to the Government makes a recommendation to the PSC or whether the PSC should afford an opportunity of hearing to the petitioner before approving the recommendation.

� Thirdly; whether the delinquent employee; is entitled to a copy of opinion of the PSC.

� Fourthly; whether the petitioner is entitled to full payment of salary and allowances for the period, he was initially terminated till 1996 when the termination order was quashed, the petitioner was reinstated and the matter was remitted back to proceed enquiry after supply of the copy of the enquiry report and issuing second show cause notice.

It is well settled law that the first show cause notice before holding an enquiry is to enquire into the allegations leveled against the delinquent employee. The petitioner is entitled to all the documents, which were relied by the enquiry officer in the enquiry. There is no grievance of the petitioner that during enquiry, the petitioner was not supplied all the documents. The delinquent employee has been supplied with all the documents as requested by him. The petitioner is not entitled to any documents at the stage of second show cause notice, as the same deals with only question of imposition of penalty. Once the charges have been found proved in the enquiry against the delinquent employee, there is no question of supply of documents while considering the imposition of penalty. Thus, the contention of the petitioner that the petitioner was not supplied documents subsequent to second show cause notice deserves to be rejected.

A constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., observed as under:

While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.

Subsequently, it has been diluted in State of U.P. and Another Vs. Abhai Kishore Masta, wherein the Supreme Court observed that "the decision in Mohd. Ramzan Khan has been explained by a Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar. It has been held that where the order of punishment is made earlier to the date of the decision in Ramzan Khan, non-supply of enquiry report does not vitiate the enquiry.

The petitioner is not entitled to a copy of the advice tendered by the PSC. The Supreme Court in T.V. Patel (supra, held that it is not necessary to supply copy if rules do not provide for the same. Para 25 reads as under:

In view of the law settled by the Constitution Bench of this Court in Srivastava we hold that the provisions of Article 320 (3) (c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.

In S.K. Singh Vs. Central Bank of India and Others, the Supreme Court observed as under:

It is contended by Shri Khanduja, learned counsel for the petitioner, that since this Court has laid down the law that supply of copy of the enquiry report is a precondition for a competent officer to take disciplinary action, the appropriate course would have been to send back the case to the disciplinary authority. For this course, normally there is no quarrel, as this Court had settled the law that a copy of the report needs to be supplied to the delinquent employee to enable him to make representation against the proposed action or punishment and, thereafter, the authority is required to consider that explanation offered by the petitioner and then to take decision on the quantum of punishment. In this case, though copy of the report was not supplied, he was asked by the learned Single Judge as well as by the Division Bench as to what prejudice he suffered on account of non-supply of the report; but he was not able to satisfy; the learned Judges as to the prejudice caused to him on account of non-supply of the enquiry report. On the facts, we find that there is no illegality in the decision taken by the High Court.

In Maharashtra State Seeds Corpn. Ltd Vs. Haridas and Another, the Supreme Court held that:

The first respondent held an office of trust. He distributed seeds to the farmers. He collected a huge amount from them. He not only defalcated a huge amount but also misappropriated some bags of seeds. It was in the aforementioned situation improper for the High Court to interfere with the quantum of punishment. It is now well settled that in a matter of disciplinary proceedings the High Court exercises a limited power. (See Govt. of A.P. v. Mohd. Nasrullah Khan, L.K. Verma v. H.M.T. Ltd., Karnataka Bank Ltd. v. A.L. Mohan Rao and Hombe Gowda Educational Trusts. State of Karnataka.)"

In A. Sudhakar Vs. Post Master General, Hyderabad and Another, the Supreme Court observed as under:

It is well settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311 (2) of the Constitution in view of the decision of this Court in Khem Chand v. Union of India are held to be as a part of the principle of natural justice. The courts in the aforementioned situation are required to see as to whether non-observance of any of the said principles in a given case has resulted in denial of justice. If there had been substantial compliance with the procedure, the court may not interfere. (See State of U.P. v. Om Prakash Gupta and Kuldeep Singh v. Commr. of Police.)

In Mohd. Sartaj and Another Vs. State of U.P. and Others, the Supreme Court held in para 18 as under:

In Aligarh Muslim University Vs. Mansoor Ali Khan this Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice, and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta Vs. Union of India, the exceptions laid down in S.L. Kapoor case and K.L. Tripathi Vs.State Bank of India where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of State Bank of Patiala Vs. S.K. Sharma and Rajendra Singh Vs. State of M.P. where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd., this Court has held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When, facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. In another recent judgment in State of U.P. Vs. Neeraj Awasthi while considering the argument that the principle of natural justice had been ignored before terminating the service of the employees and, therefore, the order terminating the service of the employees was bad in law, this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted. This Court has found in Neeraj Awasthi case that if the services of the workmen are governed by the U.P. Industrial Disputes Act, they are protected under that law. Rules 42 and 43 of the U.P. Industrial Disputes Rules lay down that before effecting any retrenchment the employees concerned would be entitled to notice of one month or in lieu thereof pay for one month and 15 days wages for each completed year of service by way of compensation. If retrenchment is to be effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principles of natural Justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not as a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment.

In Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, the Supreme Court held as under:

This brings us to the question as to whether the principles of natural Justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing,

It is also, however, well settled that it cannot put any strairjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.

A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.

The Supreme Court in S.K. Siddique Vs. Madhya Pradesh State Road Transport Corporation and another, , wherein the appointment of teachers were cancelled without giving them an opportunity of hearing, observed as under:

It is not necessary to go into all these questions. In the facts and circumstances of this case we are of the view that the appellant should have been given an opportunity of hearing before canceling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellant could be passed without complying with the rules of natural justice.

The Supreme Court in D.K. Yadav Vs. J.M.A. Industries Ltd., considering the concept of opportunity of hearing observed as under:

The cardinal point that has to be borne in mind, in every case, is whether the person; concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably, and impartially. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Therefore, fair play in-action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be inconformity with the principles of natural justice.

The said principle is reaffirmed by the Supreme Court in Basudeo Tiwary Vs. Sido Kanhu University and Others, wherein it is held that:

The law is settled that non arbitrariness is essential facet of Article 14 forwarding the entire realm of State action governed by Article 14. It has come to establish, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment.

Further, in Canara Bank and Others Vs. Shri Debasis Das and Others, , the Supreme Court observed as under:

The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. It is after all an approved rule of fair play and one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time.

The Supreme Court in Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, held as under:

The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. (See Gurjeewan Garewal (Dr.) Vs. Dr. Sumitra Dash) The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case (See State of Punjab Vs. Jagir Singh and Karnataka SRTC Vs. S.G. Kotturappa).

After having considered the above cited decisions of the Supreme Court this Court in Ku. Punam & Others vs. State of C.G. & Others, 2008 (2) CGLJ 366 observed as under:

Applying well settled principle of law to the facts of the case, there is a common thread that the principle of natural justice is not unruly horse. The principles of natural justice are required to be complied with, having regard to the facts situation obtained therein. Thus, the principles of natural justice may not be required to be followed in the cases, where the facts are admitted. Secondly, that it is practically impossible or highly improbable to afford; an opportunity of hearing, in the event of quashing of selection on account of irregularity committed on mass scale, or en-masse cancellation. Thirdly, no useful purpose would be served by affording an opportunity, of hearing.

The petitioner has complained that the petitioner should have been afforded opportunity of hearing at every stage. The law in respect of opportunity of hearing is clear. If no prejudice is caused to the delinquent employee or no useful purpose would be served by affording any opportunity of hearing, compliance of principles of natural justice is not necessary. {See Viveka Nand Sethi (supra)}.

There is no force in the argument of the petitioner that since the petitioner was not supplied with the documents at the stage of second show cause notice, the penalty imposed thereon is vitiated.

It is well settled law that second show cause notice is not with regard to finding of innocence or guilt of the petitioner, but with regard to imposition of punishment. Even otherwise, the petitioner has failed to establish that any prejudice would be caused to him on account of non-supply of, documents. Thus, the order is not vitiated on that count also.

Affording an opportunity of hearing at the stage of making recommendation to the PSC or prior to approval of the recommendation by the PSC is also not warranted when the petitioner has sufficient opportunity in the departmental enquiry and thereafter he has submitted his reply to the second show cause notice.

With regard to non-supply of copy of opinion of PSC to the petitioner is concerned, it has been settled by the Hon''ble Supreme Court that a copy of opinion need not be supplied to the delinquent employee before passing the order of penalty. {See T.V Patel (supra)}

Further contention of the petitioner with regard to issuance of three months notice before imposition of punishment of compulsory retirement is concerned, in the present case punishment of compulsory retirement has not been imposed in exercise of power under FR 56. The action has been taken under Rule 10 (vii) of the Rules, 1966, which reads as under:

Penalties-The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:

Minor penalties:-

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

Major penalties:

XXX XXX XXX

XXX XXX XXX

XXX XXX XXX

(vii) compulsory retirement;

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

In view of the foregoing, no notice is necessary before imposing the punishment of compulsory retirement.

The petitioner submits that he is entitled to payment of salary and allowances for the period from 21-12-1992 to 315-12-1996, but the same has not been paid to him, which is illegal & arbitrary.

In this regard, without expressing any opinion, it is observed that no order can be passed on merit on the order dated 6-9-2002, which was passed subsequently denying the salary and allowances, because the same has not been challenged by the petitioner in any petitions. However, liberty is reserved to the petitioner to impugn the same, in accordance with law, if so advised.

For the reasons discussed hereinabove, both the writ petitions deserve to be and are accordingly, dismissed. No order asto costs.