Uttarakhand High Court
Kanwar Amninder Singh vs Hon'Ble High Court Of Uttarakhand And ... on 25 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 442 of 2019 (S/B)
Kanwar Amninder Singh ..........Petitioner
Vs.
Hon'ble High Court of Uttarakhand and others
........Respondents
Mr. Aditya Singh, Advocate for the petitioner.
Mr. Shobhit Saharia, Advocate for the High Court of Uttarakhand.
Reserved on : 17.09.2019
Delivered on: 25.09.2019
Chronological list of cases referred:
1. (2006) 5 SCC 88
2. 2013 (4) SCC 465
3. (2018) SCC Online 2252
4. Judgment in WPSB No.45 of 2014 and WPSS No. 330 of 2015 dated 21.05.2019
5. Order of the Supreme Court in Civil Appeal No.7279 of 2019 dated 16.09.2019
6. AIR 1964 SC 364
7. (1996) 6 SCC 417
8. (1997) 2 SCC 699
9. (2005) 10 SCC 471
10. (2006) 5 SCC 446
11. (1999) 3 SCC 679
12. (2019) 7 SCC 797
13. (2019) 4 SCC 660
14. (2005) 7 SCC 764
15. (1996) 6 SCC 44
16. (2006) 1 SCC 275
17. (2005) 6 SCC 404
18. (2007) 7 SCC 555
19. (1976) 2 SCC 521
20. 1901 AC 495
21. AIR 1968 SC 647
22. AIR 1961 SC 1623
23. AIR 1957 SC 882
24. AIR 1963 SC 1719
25. AIR 1964 SC 708
26. (2008) 3 SCC 279
27. (2009) 15 SCC 88
28. (2009) 10 SCC 32
29. (2010) 2 SCC 772
30. (1996) 3 SCC 364
31. (1949) 1 All ER 109
32. (1978) 1 SCC 405
33. (1982) 1 SCC 271
34. (1981) 1 SCC 664
35. (1969) 2 SCC 262
36. (1984) 3 All ER 935
37. AIR 2006 SC 3542
38. (1984) 1 SCC 43
39. AIR 1996 SC 2736
40. (2000) 7 SCC 529
41. (1969) 3 SCC 392
42. AIR 1970 SC 679
43. 2002 (5) ALT 162 (D.B.)
44. 1998 (4) ALT 803
45. (2004) 7 SCC 442
46. (1992) 3 SCC 124
47. (1996) 1 SCC 338
48. (2012) 1 SCC 442
49. (2012) 13 SCC 142
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J.
This writ petition is filed by an Officer, in the Higher Judicial Service of the State of Uttarakhand, seeking a writ of 2 certiorari to quash the order passed by the Inquiry Officer dated 23.08.2019, and to allow his application dated 23.08.2019.
2. Facts, to the limited extent necessary, are that the petitioner was placed under suspension pending departmental enquiry. A charge sheet was, thereafter, issued to him, and a Sitting Judge of this Court was appointed as an Inquiry Officer to enquire into the charges levelled against him.
3. In this writ petition, the petitioner questions the order passed by the Inquiry Officer dated 23.08.2019 rejecting his request to defer cross examination of PW-2 till the other cited witness is also examined-in-chief. In his order dated 23.08.2019, the Inquiry Officer has opined that PW-2 had travelled twice from Roorkee to Nainital; examination-in-chief of PW-2 was recorded on that day; and since the procedure prescribed in a criminal trial is not applicable to a departmental enquiry, he found no reason to allow the application of the delinquent officer. The request of the delinquent officer was rejected. However, considering the apprehension of the delinquent officer and as a matter of precaution, the Inquiry Officer directed that the statement of PW-2 be kept in a sealed cover to enable the delinquent officer to cross-examine him.
4. After recording the submission urged on behalf of delinquent officer, that he intended challenging the said order of rejection, the Inquiry Officer deferred and adjourned the enquiry on the request of the delinquent officer. The matter was directed to be listed on 13.09.2019 for cross examination of PW-2, and the learned Inquiry Officer recorded that, in the meanwhile, the delinquent officer may avail the legal remedies available to him. We are now informed that the enquiry, scheduled to be held on 13.09.2019, has been deferred to 20.09.2019.
5. Mr. Aditya Singh, learned counsel for the petitioner, would submit that the very object, of providing an opportunity to the 3 delinquent employee to cross examine witnesses, would be defeated, if the delinquent officer is forced to reveal his defense during cross examination of PW-2; this may result in the next cited witness covering up the deficiencies, brought out during the cross- examination of PW-2, in his testimony; while the principles applicable to a criminal trial may not automatically apply to disciplinary proceedings, the obligation, to comply with the Rules of Natural Justice, is applicable even to departmental enquiries; the Supreme Court, in M.V. Bijlani vs. Union of India1, has held that a departmental enquiry is quasi-criminal in character; the Supreme Court, in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & others2, has emphasized on the importance of an effective cross- examination in a departmental enquiry; the law laid down by the Supreme Court, in State of Kerala vs. Rasheed3, would apply squarely to the facts of the present case; the Inquiry Officer has erred in brushing aside this judgment of the Supreme Court, merely holding that the provisions of the Criminal Procedure Code are not applicable in departmental enquiries; while the strict rules of the Evidence Act, applicable in a criminal trial, may not apply to departmental enquiries, nevertheless the right to effectively cross-examine witnesses is conferred upon the delinquent even in disciplinary proceedings; in the present case, the right of cross-examination would be effective, only if the delinquent officer is not compelled to disclose his defence before the other cited witness is examined in chief; the ratio, of the judgment in Rasheed3, squarely applies to the present case, despite the distinction between a criminal trial and disciplinary proceedings; in the light of the law declared by a Full Bench of this Court in Dhananjay Verma vs. State of Uttarakhand & others4, the ratio of the judgment in Rasheed3 would squarely apply to the facts and circumstances of the present case; the need to defer cross examination of PW-2, till the next cited witnesses is examined in chief, is primarily because both these witnesses had, in the preliminary inquiry, deposed the very same facts; and it was necessary, therefore, that he be permitted to cross examine both the witnesses together.
46. On the other hand, Mr. Shobhit Saharia, learned counsel for the High Court of Uttarakhand, would submit that the petitioner's endeavour is only to drag on the disciplinary enquiry; as has been recorded in the impugned order by the Inquiry Officer, PW-2 was made to come from Roorkee to Nainital twice; the Inquiry Officer has rightly held rejected the petitioner's request, as the judgment in Rasheed3, which related to a criminal trial, is not applicable to a departmental enquiry; the distinction between a departmental enquiry and a criminal trial has been considered elaborately by the Supreme Court in Karnataka Power Transmission Corporation Limited vs. Sri C. Nagaraju & another5; this Court would, ordinarily, not interdict a departmental enquiry during its progress, as it is always open to the delinquent employee to question the mode and manner, in which the disciplinary inquiry is conducted, even after the enquiry is concluded, and before a final order is passed by the disciplinary authority; and the judgment of the Supreme Court in M.V. Bijlani1 is not applicable to the fact of the present case, since the proceedings under challenge therein was an order of punishment imposed after culmination of the disciplinary enquiry.
7. The disciplinary inquiry initiated against the petitioner is still pending before the Inquiry Officer. The jurisdiction of this Court has been invoked, under Article 226 of the Constitution of India, questioning the action of the Inquiry Officer in not acceding to the petitioner's request that cross-examination of PW2 be deferred till the next cited witness is examined in chief. In support of the petitioner's claim to be entitled as of right, for cross-examination to be deferred, reliance is placed on the judgment of the Supreme Court, in Rasheed3, wherein the scope of Section 231(2) Cr.P.C. was under
examination. Section 231 Cr.P.C. relates to the evidence for prosecution and under sub-section (1) thereof, on the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. Section 231(2) Cr.P.C. enables the Judge, in his discretion, to permit cross-examination of any witness to be 5 deferred until any other witness or witnesses have been examined, or to recall any witness for further cross-examination.
8. While examining the scope of Section 231(2) Cr.P.C, the Supreme Court, in Rasheed3, opined that the norm in any criminal trial is for the examination-in-chief of witnesses to be carried out first, followed by cross-examination, and re-examination if required, in accordance with Section 138 of the Indian Evidence Act; Section 231(2) Cr.P.C. conferred a discretion on the Judge to defer cross- examination of any witness in appropriate cases; judicial discretion should be exercised in consonance with the statutory framework and context, while being aware of the reasonably foreseeable consequences; the party seeking deferral, under Section 231(2) Cr.P.C, must give sufficient reasons to invoke the discretion of the Judge, and deferral cannot be asserted as a matter of right; the discretion under Section 231(2) Cr.P.C. should be exercised only in "exceptional circumstances", or when "a very strong case" has been made out; while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion under Section 231(2) Cr.P.C. if sufficient reasons are made out for deviating from the norm; the circumstances in which discretion to defer cross- examination can be exercised, so as to avoid prejudice due to disclosure of strategy, are (i) where witnesses are related to each other, and are supposed to depose on the same subject-matter and facts, and (ii) where witnesses are supposed to depose about the same set of facts; circumstances in which deferral could be refused are (i) where the ground for deferral was the mere existence of a relationship between the witnesses, (ii) where specific reasons were not given in support of the claim that prejudice would be caused since the defence strategy would be disclosed, and (iii) where no prejudice would be caused; there cannot be a straitjacket formula providing for the grounds on which judicial discretion under Section 231(2) Cr.P.C, can be exercised; the exercise of discretion should take place on a case-to-
6case basis; the guiding principle for a Judge, under Section 231(2) Cr.P.C, is to ascertain whether prejudice would be caused to the party seeking deferral, if the application is dismissed; and while deciding an application under Section 231(2) Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence.
9. The law laid down by the Supreme Court, in Rasheed3, is that the party seeking deferral must give sufficient reasons to invoke the discretion of the judge; deferral cannot be assessed as a matter of right; discretion, under Section 231(2) Cr.P.C, should be exercised only in exceptional circumstances or when a very strong case is made out; there cannot be a straight jacket formula providing for grounds on which judicial discretion under Section 231(2) Cr.P.C. should be exercised; such exercise of discretion would be on a case to case basis; the guiding principle is to ascertain whether prejudice would be caused if such a request is not acceded to; and a balance must be struck between the rights of the accused and the prerogative of the prosecution to lead evidence. Discretion, to defer cross- examination of a witness even in a criminal trial, can only be exercised in exceptional circumstances, and an accused cannot claim as of right that deferral should be granted for the mere asking. Further, the aforesaid observations of the Supreme Court in Rasheed3 were on the scope of exercise of judicial discretion under Section 231(2) Cr.P.C.
10. On the other hand the order, impugned in this Writ Petition, was passed by the Inquiry Officer under the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003. The 2003 Rules were made under the proviso to Article 309 of the Constitution of India. Rule 2(d) thereof defines 'departmental inquiry' to mean an inquiry under Rule 7 of the Rules. Rule 2(e) of the Rules defines 'disciplinary authority' to mean the authority empowered under Rule- 6 to impose penalties. Rule 6 stipulates that the appointing authority, of a Government Servant, shall be his disciplinary authority who, 7 subject to the provisions of these Rules, may impose any of the penalties specified in Rule-3 on him. Rule 7 prescribes the procedure for imposing major punishment, and enables the Disciplinary Authority, if he is of the opinion that there are grounds to inquire into the charges of misconduct or misbehavior against the Government servant to conduct an inquiry into the charges. In terms of Rule 7(i) the disciplinary authority may himself inquire into the charges or in terms of Rule 7(7) he may, if he considers necessary, appoint another person as the Enquiry Officer.
11. The enquiry officer holds the enquiry against the delinquent employee as a delegate of the disciplinary authority. That is the character which the enquiry officer inevitably occupies when he holds a departmental enquiry. The object of the enquiry is to enable the disciplinary authority to hold an investigation into the charges framed against a delinquent employee, so that the disciplinary authority can, in due course, consider the evidence adduced and decide whether the said charges are proved or not. The interposition of the enquiry, which is held by a duly appointed enquiry officer, does not alter the true legal position that it is the disciplinary authority who is empowered to impose punishment on the delinquent employee. (Union of India v. H.C. Goel6). As the Enquiry Officer is merely a delegate of the Disciplinary Authority, and it is the Disciplinary Authority who must, on submission of the inquiry report by the Enquiry Officer, decide whether the inquiry stands vitiated for non- compliance of the rules of the natural justice, the submission urged by Mr. Shobhit Saharia, learned counsel appearing on behalf of the High Court, that no interference is called for at this stage, needs to be examined.
12. Before examining this contention, it is useful to note that Rule 7(10) of the 2003 Rules stipulates that the Disciplinary Authority or the Inquiry Officer, whosoever is conducting the inquiry, shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged government servant 8 who shall be given opportunity to cross examine such witnesses after recording the aforesaid evidences or, after recording the aforesaid evidences, the Inquiry Officer shall call and record the oral evidence which the charged government servant desired, in his written statement, to be produced in his defense. Under the proviso thereto, the Inquiry Officer may, for reasons to be recorded in writing, refuse to call a witness. Unlike Section 231(2) Cr.P.C, which confers judicial discretion on the Criminal Court to defer cross-examination in certain circumstances, the 2003 Rules make no such provision. While Rule 7(10) provides for an opportunity for the witnesses, proposed in the charge-sheet, to be cross-examined, there is no specific provision for deferring cross-examination of a witness till the next cited witness is examined in chief.
13. In this context, it must be borne-in-mind that the approach and the objective in the criminal proceedings and the disciplinary proceedings is distinct and different. In disciplinary proceedings, the question is whether the charged employee is guilty of such conduct as would merit his removal from service, or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him, under the the Indian Penal Code, are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are also different. (State of Rajasthan v. B.K. Meena7; Sri C. Nagaraju5). Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which the law has provided that the offender shall make satisfaction to the public. Crime is an act of commission in violation of the law, or of omission of a public duty. The departmental enquiry is to maintain discipline in the service and the efficiency of public service. (Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya8; Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry9 and G.M. Tank v. State of Gujarat10).
914. In a criminal trial, the prosecution is required to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in a departmental proceedings is not the same as of a criminal trial. The evidence required in the departmental enquiry is not regulated by the Evidence Act. (Mohd. Yousuf Miya8). Enquiry, in a departmental proceedings, relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. The strict standard of proof or applicability of the Evidence Act stands excluded. Proof in that behalf is not as high as in an offence in a criminal charge. Invariably a departmental enquiry has to be conducted expeditiously, so as to effectuate efficiency in public administration. (Mohd. Yousuf Miya8; Sarvesh Berry9 and G.M. Tank10).
15. In a departmental proceeding, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent. In a departmental proceedings the standard of proof is one of preponderance of probabilities. In a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.11; Shashi Bhushan Prasad vs. Inspector General, Central Industrial Security Force and others12; S. Sreesanth vs. The Board of Control for Cricket in India and others13). In a criminal trial, incriminating statements made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. (Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd.14; G.M. Tank10 and Shashi Bhushan Prasad12). The law laid down by the Supreme Court, in Rasheed3, on the scope of purport of Section 10 231(2) Cr.P.C. cannot be made applicable automatically to disciplinary inquiries, since the approach and objective of the criminal proceedings and the disciplinary proceedings are completely different and distinct. Further, unlike Section 231(2) Cr.P.C, there is no specific provision in the 2003 Rules obligating the Enquiry Officer to defer cross-examination of a prosecution witness for the mere asking of the delinquent employee.
16. The contention that the judgment of the Supreme Court, in Rasheed3, is binding on the High Court, is not tenable. The only thing in a judicial decision binding is the principle upon which the case is decided, and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. Every decision contains three basic postulates--findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts (statements of the principles of law applicable to the legal problems disclosed by the facts); and a judgment based on the combined effect of the above. What is of the essence in a decision is its ratio. The enunciation of the reason or principle, on which a question before a court has been decided, is binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it is, is binding. A deliberate judicial decision arrived at, after hearing an argument on a question which arises in the case or is put in issue, would constitute a precedent. (Union of India v. Dhanwanti Devi15; State of Orissa v. Mohd. Illiyas16; ICICI Bank v. Municipal Corpn. of Greater Bombay17; Girnar Traders v. State of Maharashtra18; ADM, Jabalpur vs. Shivakant Shukla19; Quinn v. Leathem20; State of Orissa v. Sudhansu Sekhar Misra21 and Dhananjay Verma4). Since the law declared by the Supreme Court, in Rasheed3, was on the scope of Section 231(2) Cr.P.C. and there is no similar provision in the 2003 11 Rules, reliance placed on behalf of the petitioner, on Rasheed3, is wholly misplaced.
17. Mr. Aditya Singh, learned counsel for the petitioner, would, however, contend that, since disciplinary proceedings are also quasi-criminal in character, the petitioner has the right to seek deferral of cross-examining a prosecution witness till the other cited witness is examined in chief. Since reliance is placed, in this regard, on the judgment of the Supreme Court, in M.V. Bijlani1, it is necessary to take note of the law declared therein. In M.V. Bijlani1, disciplinary proceedings were initiated against the appellant, and the inquiry officer submitted his report holding him guilty of two of the three charges. The disciplinary authority imposed upon him the punishment of removal from service. The appeal preferred there-against was dismissed. A challenge thereto was rejected by the Central Administrative Tribunal. As the Writ Petition, filed against the order passed by the Central Administrative Tribunal, was dismissed by the High Court, the appellant invoked the jurisdiction of the Supreme Court which held that the evidence recorded by the inquiry officer, and the inferences drawn by him, were not commensurate to the charges; a serious charge could not have been inquired into without framing appropriate charges; the charges were vague; and a specific charge should have been framed.
18. The Supreme Court, thereafter, observed that disciplinary proceedings are quasi-criminal in nature; there should be some evidence to prove the charge; although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, the enquiry officer performed a quasi- judicial function; upon analysing the documents, he must arrive at the conclusion that there had been a preponderance of probability to prove the charges on the basis of the material on record; while doing so, he cannot take into consideration irrelevant facts; he cannot refuse to consider relevant facts; he cannot shift the burden of proof; he cannot 12 reject the relevant testimony of the witnesses on surmises and conjectures; and he cannot enquire into allegations with which the delinquent officer has not been charged. The aforesaid observations of the Supreme Court, in M.V. Bijlani1, were made in a case where the order of punishment imposed on the delinquent employee, pursuant to a departmental inquiry, was under challenge. These observations cannot be read out of context to contend that the provisions of Section 231(2) Cr.P.C. would apply automatically even to departmental inquiries.
19. On the right of a delinquent employee to seek deferral of cross-examination, it is necessary to note that a government servant is entitled to be afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. He should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are, and he is permitted to cross-examine the witnesses produced against him. (Ayaaubkhan Noorkhan Pathan2). The rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, the evidence of the opposite party should be taken in his presence, and he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate principles of natural justice. (State of M.P. v. Chintaman Sadashiva Waishampayan22; Ayaaubkhan Noorkhan Pathan; Union of India v. T.R. Varma23; Meenglas Tea Estate v. Workmen24; Kesoram Cotton Mills Ltd. v. Gangadhar25; New India Assurance Co. Ltd. v. Nusli Neville Wadia26; Rachpal Singh v. Gurmit Kaur27; Biecco Lawrie Ltd. v. State of W.B.28 and State of U.P. v. Saroj Kumar Sinha29). Not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-
13examination is an integral part and parcel of principles of natural justice. (Ayaaubkhan Noorkhan Pathan2).
20. In the present case, the petitioner has not been denied the right to cross-examine PW2. On the other hand the said witness was summoned twice from Roorkee to Nainital to enable him to be subjected to cross-examine on behalf of the petitioner. What the petitioner seeks is not to cross-examine PW2, but to defer his cross- examination till the next cited witness is examined. Since there is no specific provision in this regard in the 2003 Rules, the question which necessitates examination is whether such a requirement can be held to form part of the Rules of natural justice.
21. Principles of natural justice can neither be reduced to any hard and fast formulae, nor can they be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (State Bank of Patiala v. S.K. Sharma30; Russell v. Duke of Norfolk31; Mohinder Singh Gill v. Chief Election Commr32). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. Principles of natural justice and a fair hearing are synonymous. Whichever the case, it is from the standpoint of fair hearing -- applying the test of prejudice, as it may be called -- that any and every complaint of violation of the rule of natural justice should be examined. (S.K. Sharma30; A.K. Roy v. Union of India33; Swadeshi Cotton Mills v. Union of India34; A.K. Kraipak v. Union of India35; Council of Civil Service Unions v. Minister for the Civil Service36).
22. Even an order passed imposing a punishment on an employee, consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries, should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. A substantive provision should, normally, be complied with, and the 14 theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provisions should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders should be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, no interference is called for. There may be certain procedural provisions which are of a fundamental character, whose violation is, by itself, proof of prejudice. The Court may not insist on proof of prejudice in such cases. The test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. (S.K. Sharma30). In the case of a procedural provision which is not of a mandatory character, the complaint of violation should be examined from the standpoint of substantial compliance. An order passed in violation of such a provision may be set aside only where such violation has occasioned prejudice to the delinquent employee. (S.K. Sharma30).
23. In the case of violation of a procedural provision, which is of a mandatory character, it should be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the 15 said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the test of prejudice or the test of fair hearing. (S.K. Sharma30).
24. Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. A distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". In the case of the former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). But, in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) should be examined from the standpoint of prejudice. In other words, what should be seen is whether, in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing, and the orders to be made shall depend upon the answer to the said query. (S.K. Sharma30).
25. The contention that the right to cross-examine witnesses, and to seek deferral of such cross-examination, inheres in the rules of natural justice, does not merit acceptance. Even if we were to proceed on the premise that the right of effective cross-examination of a witness is a facet of the Rules of natural justice, it must be borne-in- mind that, in order to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused by the non-observance thereof, (Syndicate Bank vs. Venkatesh 16 Gururao Kurati37; K.L. Tripathi v. State Bank of India38; Rajendra Singh v. State of M.P.39; Aligarh Muslim University v. Mansoor Ali Khan40 and S. K. Sharma30), more so on the ground of absence of opportunity of effective cross-examination. (Jankinath Sarangi v. State of Orissa41; K.L. Tripathi38). All that the Courts must examine is whether non-observance of any of these principles, in a given case, is likely to have resulted in deflecting the course of justice. (State of U.P. vs. Om Prakash Gupta42). No interference is called for where procedural violations, if any, have not caused any prejudice to the delinquent. (UCO Bank and another v. M. Venuranganath43 and C. Pattabhirama Sastry v. Bank of Baroda44). Violation of principles of natural justice may not, by itself, necessitate interference by this Court, under Article 226 of the Constitution of India, in all cases. Interference would be justified only where manifest injustice would otherwise ensue or where larger public interest would so require.
26. Failure to comply with the procedural rules, requiring an opportunity to be provided to effectively cross-examine witnesses, should be examined from the point of view of prejudice caused thereby to a delinquent employee. In S.K. Sharma30 the Supreme Court held that the object of principles of natural justice is to ensure that justice is done, there is no failure of justice, and every person whose rights would be effected by the proposed action gets a fair hearing. The Supreme Court summarized the principles as under:-
".......... In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so 17 prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things..........."
..............While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them..............." (emphasis supplied)
27. In order to sustain a complaint of the violation of principles of natural justice, on the ground of absence of opportunity of effective cross-examination, it must be established that some prejudice has been caused to the delinquent employee by the procedure followed. (K.L. Tripathi38; Ayaaubkhan Noorkhan Pathan2). The question of prejudice must first be examined by the Disciplinary Authority after completion of inquiry, and not by the High Court during the pendency of inquiry proceedings, for it is well settled that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry should be determined in each case taking into consideration all facts and circumstances of the case. Stay of departmental proceedings cannot be and should not be a matter of course. (B.K. Meena7 and Kendriya Vidyalaya Sangathan v. T. Srinivas45). Courts/tribunals should be very careful before 18 granting stay in a disciplinary proceeding at an interlocutory stage. (Union of India v. A.N. Saxena46). No interference is, ordinarily, warranted by the High Court, under Article 226 of the Constitution, at the interlocutory stage of the disciplinary proceedings. (Managing Director, Madras Metropolitan Water Supply and Sewerage Board and another v. R. Rajan47). It would be wholly inappropriate for this Court, therefore, to interfere with the inquiry proceedings at an interlocutory stage. It is in the interest of the delinquent officer, as well as the employer, that the disciplinary proceedings are promptly concluded. (Karnataka SRTC v. M.G. Vittal Rao48; Avinash Sadashiv Bhosale v. Union of India49).
28. Since the claim of the petitioner that he has suffered prejudice on the failure of the Enquiry Officer to defer cross- examination of PW2 is required to be examined by the Disciplinary Authority in the first instance after completion of the inquiry, and as this Court would ordinarily not interfere with the inquiry proceedings at an interlocutory stage, we see no reason to entertain this Writ Petition. While declaring the law in this regard on whether or not prejudice is suffered on the failure of the Enquiry Officer to defer cross-examination of a witness, suffice it to make it clear that it is open to the petitioner on completion of the inquiry, and on his being afforded an opportunity to put forth his objections to the inquiry report, to also raise this contention of having suffered prejudice, on the failure of the Enquiry Officer to defer cross-examination of PW2. We have no reason to doubt that, on any such objection being raised, the Disciplinary Authority would consider such contentions uninfluenced by any observations made in this order.
29. Subject to the above observations, the Writ Petition fails and is, accordingly, dismissed. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.)
25.09.2019 25.09.2019
NISHANT