TMI Blog2001 (5) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... air 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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