Ram Prakash vs Cane Commissioner And Others

Ramesh Ranganathan, C.J.

This appeal is preferred against the order passed by learned Single Judge in WPSS No. 2819 of 2001 (Old No. 2602 of 2000) dated 24.02.2012.

The appellant - writ petitioner was appointed as a Ganna Gram Sewak in the year 1978, which post was later re-designated as a Cane Supervisor. A charge-sheet was issued in July 1997 to which he submitted his reply denying the charges. An Inquiry Officer was appointed, inquiry was held, and an inquiry report was submitted by the Inquiry Officer holding that the charges levelled against the petitioner stood proved. The Disciplinary Authority, thereafter, issued a notice calling upon the appellant - writ petitioner to show cause why action should not be taken against him under the Rules. A reply dated 04.08.1998 was submitted by the appellant - writ petitioner. The Disciplinary Authority, after considering the reply and findings given by the Inquiry Officer, reverted the appellant - writ petitioner to the minimum level in the pay scale applicable to him. He also directed that an adverse entry be recorded in his service record, and his integrity certificate be also withheld. Aggrieved thereby, the appellant - writ petitioner preferred an appeal to the Appellate Authority which was also dismissed and, thereafter, the petitioner invoked jurisdiction of this Court.

The sole contention urged before the learned Single Judge was that a copy of the inquiry report was not supplied to the appellant - writ petitioner at the time when the show cause notice was issued to him. According to the appellant - writ petitioner, it was mandatory for the Disciplinary Authority to supply the inquiry report, and non supply of the inquiry report had caused him irreparable injury. Rule 9 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999, requires that a copy of the inquiry report should be supplied at the stage when a show cause notice is being issued.

In the order under appeal, the learned Single Judge has also taken note of the contents of the counter-affidavit filed by the respondents wherein they admitted that the show cause notice dated 15.06.1998 was not accompanied by a copy of the inquiry report, but had further submitted that, when the show cause notice was served on the appellant - writ petitioner, the inquiry report was also served; and only after reading the same, did the appellant - writ petitioner receive the show cause notice; the respondents had contended that a copy of the inquiry report was duly supplied; they also claimed that, at no stage thereafter, did the appellant - writ petitioner make any demand for supply of the inquiry report; and nothing has been indicated in the writ petition, as to what prejudice was caused to the appellant - writ petitioner because of non supply of the inquiry report.

After referring to Rule 9(4) of the 1999 Rules, the learned Single Judge observed that the Disciplinary Authority was of the opinion that the penalty specified in Rule 3 should be imposed on the charged government servant, and he should be given a copy of the inquiry report; admittedly, the show cause notice was not accompanied by the inquiry report, but it was specifically stated, in paragraph 11 of the counter affidavit, that, at the time when the show cause notice was served, a copy of the inquiry report was duly supplied; no rejoinder affidavit had been filed and, consequently, the contents of paragraph 11 and 13 of the counter affidavit remained un-rebutted.

The learned Single Judge, thereafter, opined that the admitted position was that non supply of the inquiry report was not fatal to the impugned order; no prejudice had been shown to have been caused to the appellant - writ petitioner nor was any such allegation made by the appellant - writ petitioner; even after show cause notice was served, no steps were taken by the appellant - writ petitioner requesting the Disciplinary Authority to supply a copy of the inquiry report; and in the light of the decision of the Supreme Court, in Managing Director, ECIL Hyderabad Vs. B. Karunakar reported in 1993 (4) SCC 727, he was not inclined to set aside the impugned order only on the ground that a copy of the inquiry report was not supplied. The writ petition was dismissed. Aggrieved thereby, the present appeal.

Sri B.D. Upadhyay, learned Senior Counsel appearing on behalf of the appellant, would submit that the requirement in law is for a copy of the inquiry report to be furnished, and for the delinquent to be called upon to file his/her objections thereto; admittedly no such inquiry report was supplied along with the show cause notice; the mere fact that averments made in paragraph 11 of the counter affidavit were not rebutted by way of rejoinder affidavit, does not absolve the respondents of their obligation to supply a copy of the inquiry report, as the law declared in B. Karunakar mandates them to do so; the entire basis, on which the appellant - writ petitioner was found guilty, is that he had estimated the sugarcane crop of a dead person, namely Sri Harbhajan Singh; there were two Harbhajan Singh; and, in fact, the appellant - writ petitioner had furnished the name of the other Harbhajan Singh, and not the one who died.

Sri Shailendra Singh Chauhan, learned Deputy Advocate General for the State of Uttarakhand, would submit that, since the learned Single Judge has specifically recorded findings that a copy of the inquiry report was available with the appellant - writ petitioner, this Court would not examine the question whether any prejudice had been caused to the appellant - writ petitioner because of non supply of the inquiry report; as the inquiry report was available with the appellant - writ petitioner, he was required to file his objection to the report; having failed to do so, it was not open to the appellant - writ petitioner to now turn around and contend that the inquiry report was not even furnished to him; and the learned Single Judge has rightly rejected the appellant - writ petitioner's claim that a copy of the inquiry report was not available with him.

As the requirement of furnishing a copy of the inquiry report has been held to be mandatory by the Supreme Court, in Managing Director, ECIL Hyderabad Vs. B. Karunakar reported in 1993 (4) SCC 727, it is necessary to take note of the law declared therein. The Supreme Court observed: -

".............Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

Hence the incidental question raised above may be answered as follows:

(i) Since the denial of the report of the Inquiry 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.

(ii) The relevant portion of Article 311(2) of the Constitution is as follows:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Thus, the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry 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 Inquiry Officer's 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 Courts/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 Court/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 Courts/Tribunals find 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. Where after following the above procedure, the Courts/Tribunals set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.

The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law...." (emphasis supplied)

It is only in cases where a copy of the inquiry report has not been furnished, that the Supreme Court has held that, instead of directing the authorities concerned to furnish an inquiry report and continue proceedings thereafter, it was for the Court to examine whether non-supply of the inquiry report had caused any prejudice to the delinquent. It is wholly unnecessary to examine the question whether any prejudice is caused to the delinquent employee, when a copy of the inquiry report has already been furnished to him; and, since the learned Single Judge has opined that a copy of the inquiry report was, in fact, available with the appellant-writ petitioner, it was for him to have submitted his objections thereto. In this context, it is useful to reproduce the specific averments made in paragraph 11 of the counter affidavit filed by the respondents in the writ petition:

".............It is submitted that though a show cause notice dated 25.06.1998 was not accompanied by copy of enquiry report, but at the time of service of order dated 25.06.1998, the petitioner had before him the enquiry report and he after reading the same received only show cause notice. Therefore, it cannot be said that there was no attempt on the part of the department to serve the copy of enquiry report to the petitioner. It is pointed out that the petitioner made no demand whatsoever for copy of enquiry report before he filed his reply dated 04.08.1998. In view of these facts and circumstances the allegations of the petitioner that he did not receive any copy of the enquiry report is not correct..........."

The submission urged on behalf of the respondents in effect, is that when the show cause notice was served on the appellant-writ petitioner, a copy of the inquiry report was available with him and, therefore, it could not be said that no attempt was made to serve a copy of the inquiry report on the appellant - writ petitioner. This specific assertion, in the counter affidavit, has not been rebutted by way of a rejoinder affidavit.

While Sri B.D. Upadhyaya, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, would submit that a vague assertion in the counter affidavit, that a copy of the inquiry report was available with the appellant-writ petitioner, would not suffice as the law obligates the respondents to furnish a copy of the inquiry report to the appellant - writ petitioner. We must express our inability to agree. If, as is stated in the counter affidavit, a copy of the inquiry report was, in fact, available with the appellant-writ petitioner, nothing prevented him from filing his objections thereto.

This question can be examined from another angle also. In an intra-court appeal, the Division Bench exercises the very same jurisdiction as the learned Single Judge does i.e. under Article 226 of the Constitution of India. It is only if the order under appeal suffers from a patent error or illegality, would interference be called for in an intra-court appeal. Even if the view taken by the learned Single Judge is accepted to be a possible view, but the Division Bench is of the view that the other view, as canvassed before it on behalf of the appellant-writ petitioner, is more attractive, even then no interference is called for in an intra-court appeal. It is only  if the view taken by the learned Single Judge is held not even to be a possible view, would the Division Bench then be justified in interference. It is difficult for us to hold that the view taken by the learned Single Judge is not a possible view. In the light of the findings of the learned Single Judge, that a copy of the inquiry report was available with the appellant-writ petitioner, it was for him to file his objections thereto. This Court cannot, in such circumstances, examine whether any prejudice was caused because of non supply of the inquiry report, since the question of prejudice necessitates examination only if a copy of the inquiry report had not been furnished, and not otherwise.

Sri B. D. Upadhayaya, learned Senior Counsel appearing on behalf of the appellant-writ petitioner would then rely on the judgment of the Supreme Court in Sarva Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha reported in 2010 (3) SCC 556, where it was observed: -

".............The learned Counsel for the respondent, however, submitted that the entire amount which has been misappropriated has been recovered, therefore the punishment imposed on the respondent was wholly unjustified. Relying on the judgment of Mohd. Ramzan Khan (supra) the learned Counsel has submitted that prejudice has to be presumed as the respondent has been denied reasonable opportunity by non-supply of the enquiry report.

We have considered the submissions made by the learned Counsel for the parties. When the matter came up for initial hearing we passed the following order:

The learned Counsel for the petitioner submits that the judgment of the High Court is contrary to the decision of this Court in Managing Director, ECIL v. B. Karunakar and the decision in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja 2008(9) SCC 31. Instead of sending the matter back to the High Court we are of the view that an opportunity whether there was any prejudice on account of the inquiry report not being furnished along with the show cause notice, may be given to the respondent before us. Accordingly, we direct the respondent to show cause whether any prejudice was caused by non-receipt of inquiry report along with show cause notice issued by the Bank. Call after four weeks.

This course has been adopted by us to avoid the matter being remanded back to the High Court or the Disciplinary Authority.

Pursuant to the aforesaid order, the respondent has filed an additional counter affidavit, in which he has emphasized the desirability of remanding the matter back to the disciplinary authority for re-determination of the matter. He has emphasized that failure to supply the enquiry report to the delinquent deprives him of making a proper representation to the disciplinary authority, before that authority arrives at its own findings with regard to the guilt or otherwise of an employee. This admittedly not having been done, clearly the respondent was prejudiced in submitting his defence....."

All that has been observed by the Supreme Court, in the aforesaid judgment, is that the view taken by the High Court was contrary to the law declared by the Supreme Court in Managing Director, ECIL Vs. B. Karunakar and Haryana Finance Corporation Vs. Kailash Chandra Ahuja; and, instead of sending the matter back to the High Court, an opportunity of hearing be given to the appellant to establish whether any prejudice was caused to him on account of the inquiry report not being furnished. As noted hereinabove, it is only if a copy of the inquiry report has not been furnished, would this Court, then, be required to examine whether non supply of the inquiry report has caused prejudice to the appellant-writ petitioner.

In the order under appeal, the learned Single Judge has observed that a copy of the inquiry report was, in fact, available with the appellant-writ petitioner. In the light of the findings recorded by the learned Single Judge, and as there is no material produced to show that the findings recorded by the learned Single Judge were erroneous, we must proceed on the premise that the inquiry report was, in fact, furnished to the appellant-writ petitioner. Failure on the part of the appellant-writ petitioner to file his objections thereto, cannot result in the order of punishment being set-aside.

Since this is the only contention urged before us by Sri B.D. Upadhyaya, learned Senior Counsel appearing on behalf of the appellant-writ petitioner, and as, we are satisfied that this contention of the learned Senior Counsel does not merit acceptance, we see no reason to interfere with the order of the learned Single Judge.

The appeal fails and is, accordingly, dismissed.