TMI Blog2009 (5) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was again punished for remaining absent from duty for three days vide Order dated 22 nd July, 1985 withholding one annual increment for two years. The respondent again absented himself from duty from 31st August, 1985 to 8th September, 1985 i.e. for six days for which vide Order dated 5th September, 1985, he was imposed the punishment of withholding of one annual increment for three years. The respondent again deserted the LINE for the period from 6.3.1986 to 16.3.1986 i.e. 10 days for which he was issued a Show Cause Notice under Rule 34 of CISF Rules on 22/24.3.1986. The said notice could not be served upon him as the respondent again deserted the LINE for a period of 50 days, from 21.3.1986 to 10.5.1986 and joined the service on 11th May, 1986. Therefore, he could be served the show- cause notice dated 22/24.3.1986 on 15th May, 1986. The respondent submitted his reply to the show cause notice. However, as it was not found satisfactory, a regular departmental enquiry was initiated against him. During the pendency of the enquiry, the respondent again deserted the LINE for 11 days from 6.6.1986 to 16.6.1986. The Enquiry Officer concluded the enquiry and submitted the report whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f about 23 years has lapsed. The order of the High Court if enforced, would be a reward for deserting the LINE time and again by a member of the disciplined force. Therefore, the appeal deserves to be allowed. 7. On the contrary, Shri D.K. Garg, learned Counsel appearing for the respondent employee has submitted that as there has been violation of the principles of natural justice while holding the enquiry, the judgments and orders passed by the High Court do not require any interference. The past conduct of the respondent employee could not be taken into consideration while imposing the punishment as it becomes violative of the principles of natural justice. Therefore, the appeal is liable to be dismissed. 8. We have considered the rival submission made by the learned Counsel for the parties and perused the record. In view of the submission made by learned Counsel for the parties, only two questions arise for our consideration: (1) Whether the delinquent employee is not supposed to establish de-facto prejudice in case the enquiry report is not supplied to him before awarding punishment? (2) Whether the order of punishment would be vitiated if the Disciplinary Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opportunity to make a representation against the findings in the enquiry report. However, the Court further held that 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. The Court further observed as under: 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.... It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive another order which itself is illegal or unjustified. This Court also considered the judgment in S.L. Kapoor v. Jagmohan [1981]1SCR746 , wherein it has been held that in a peculiar circumstance observance of the principles of natural justice may merely be an empty formality as if no other conclusion may be possible on admitted or indisputable facts. In such a fact-situation, the order does not require to be quashed if passed in violation of natural justice. The Court came to the conclusion that a person complaining non-observance of the principles of natural justice must satisfy that some real prejudice has been caused to him for the reason that there is no such thing as a merely technical infringement of natural justice. 16. Thus, in view of the above, we are of the considered opinion that in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him. 17. This Court in State of Assam v. Bimal Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal quashing the dismissal of Bose and directing his re-instatement is, therefore, set aside as being contrary to law. (Emphasis added) 20. Similarly in Director General, RPF v. Ch. Sai Babu [2003]1SCR729 , this Court held as under: Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works. (Emphasis added) 21. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate: (2005)ILLJ738SC , this Court reiterated the similar view observing as under: In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasion when he remained absent for 10 days without leave, the disciplinary proceedings were initiated against him. 28. The show cause notice could not be served upon him for the reason that he again deserted the LINE and returned back after 50 days. Therefore the disciplinary proceedings could not be concluded expeditiously. The respondent submitted the reply to the show cause notice and the material on record reveal that during the pendency of the enquiry he further deserted the LINE for 10 days. There is nothing on record to show any explanation for such repeated misconduct or absenteeism. The Court/Tribunal must keep in mind that such indiscipline is intolerable so far as the disciplined force is concerned. The respondent was a guard in CISF. No attempt had ever been made at any stage by the respondent-employee to explain as to what prejudice has been caused to him by non-furnishing of the enquiry report. Nor he ever submitted that such a course has resulted in failure of justice. More so, the respondent employee had never denied at any stage that he had not been punished three times before initiation of the disciplinary proceedings and deserted the LINE twice even after iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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