Allahabad High Court
Gopal Chandra Sinha S/O Late Sri ... vs State Of U.P. Through Principal ... on 14 September, 2005
Author: Sabhajeet Yadav
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT Sabhajeet Yadav, J.
1. Feeling aggrieved against the order dated 5.4.2003 passed by the State Government (Annexure-12 of the writ petition) purporting it to be under Rule 3 of U.P. Government Servants Discipline and Appeal Rules, 1999, whereby the petitioner was reverted back from the post of Sub-Divisional Officer, Forest to the post of Forest Ranger which was his original post, in initial pay scale of that post and a recovery of Rs. 3,55,321/- sought to be made from him, the petitioner has filed the present writ petition.
2. The brief facts of the case is that the petitioner was selected by U.P. Public Service Commission and initially appointed on the post of Forest Ranger in the year 1980. In due course of time in the year 1997 he was promoted on the post of Sub-Divisional Officer (Forest) and joined at Ranikhet on 21.8.97. Since then he was holding the aforesaid post in the State Forest Service Cadre. The petitioner took the charge of Janseth Range of Social Forestry Division, Muzaffarnagar under the Meerut Circle on 22.6.1994 and was Incharge of the Range upto 8.8.1996 and between 11.1096 to 21.8.97 Shri S. Chandola was the Conservator of Forest of Meerut Circle between 12.8.95 to 21.8.97. When the petitioner took charge of Janseth Range, tile Nursery wise position on 30.6.94 was that there were 10 nurseries located at various place in Janseth Tehsil, which were directly under the supervision of 9 Foresters (Section Officers), 10 Beat Officers (Forest Guards) and 10 permanent Malis. The duties of these subordinates' staff are specifically defined as per working plan. While posted and working as Sub-Divisional Officer, Forest at. Janseth and Morana Range the petitioner received a letter /notice dated 29.9.97 issued by the Divisional Forest Officer, Muzaffarnagar calling his explanation with regard to the Audit objection raised in connection of loss caused to the Government in the tune of Rs. 5,01,830.76 due to damage of 272739 plants during the period between 30.9.1993 to 30.6.1996 in the nurseries which were within the range of the petitioner. In response to the aforesaid letter the petitioner wrote a letter on 3.11.97 to the Divisional Forest Officer, Muzaffarnagar requesting him to furnish nursery-wise information of each nursery between the disputed period 30.9.93 to 30.9.96 so as to enable him to furnish any explanation in the matter but the same was never made available to him.
3. On 13.6.98 a charge sheet dated 8.5.98 vide covering letter of 29.5.1998 was served upon the petitioner by Conservator of Forest Meerut Division who has been appointed as Inquiry Officer to conduct the enquiry against the petitioner under the order of State Government dated 8.5.1998. According to the petitioner the materials in support of the charge sheet purported to be enclosed along with it were not in fact enclosed with it, therefore, it was found difficult for the petitioner to submit appropriate reply of the charge sheet as such vide his letter dated 14.6.98 the petitioner intimated Inquiry Officer that without any record asked for in response to the letter of Divisional Forest Officer, Muzaffarnagar dated 29.9.97 and enclosures of the charge memo if was not possible for him to reply to the charge sheet in detail. However, some how he replied the charge sheet in general denying the allegations having caused any loss to the government vide part A of his reply. It was stated that entire charge sheet was based on matrix report which is prepared from the extract of monthly plants enumeration Register (Masik Paudh Gadna Panjika), plants distribution register (Paudh Vitran Panjika) and Nursery Register (Paudhshala Panjika) maintained for nursery separately by Section Officers. These Registers are up dated every month and matrix report for the range are prepared from these register quarterly i.e. on 31st March, 30th June, 30th September and 30th December every year at the range level and forwarded to the Divisional Forest Officer who compiles it and reports at Divisional level and forward it to the Conservator of Forest. Thus it was essential to have these nursery wise information to furnish full and adequate reply to the charge sheet. By the aforesaid reply dated 14.6.98 the petitioner has further submitted that he has taken over the charge of Janseth range on 22.6.94, thus could not have been held responsible on the matrix data of 30.9.93 rather matrix data of 30.6.94 was relevant for working out the actual number of dead plants. The charge memo did not disclose any negligence amounting to misconducts on the part of the petitioner except general and vague allegations of shortage of specified number of plants, which could not justify initiation of disciplinary proceeding against the petitioner alone. There is a single charge against the petitioner that he failed to achieve the highest standard of integrity and devotion in performing his duties, which has resulted in shortage of plants and consequent loss to the government. Having failed to achieve the highest standard of integrity and devotion in performance of duties cannot be termed as misconduct justifying any penalty. Annual mortality rate in plants from 15 to 20% is uniformally accepted rate of plants grown and preserved in nurseries as per departmental circulars, norms and guidelines. The alleged shortage of plants during the petitioner's tenure were within the mortality rate of 15% cannot be treated to have caused any loss to the government as alleged loss of plants was shown to be within acceptable mortality rate with the result that no loss could be said to be suffered by the Government. The copies of the relevant document regarding mortality rate showing that shortage was within acceptable range has been filed as Annexure 5 of the writ petition.
4. It is further stated that although by letter dated 24.6.98 and 10.7.98 the petitioner was served with the enclosures of the chargesheet and the certified Photostat copy of document in reference of his letter dated 14.6.98 but the nursery wise information sought by the petitioner vide his letter dated 3.11.97 and 14.6.98 has never been furnished to him causing serious prejudice to the petitioner to prove his innocence. Thereafter on the basis of enclosures supplied to the petitioner vide his letter dated 23.7.98 he intimated the Inquiry Officer that matrix data dated 30.9.93 was irrelevant being prior to the period of petitioner and rest of the matrix data also lack necessary details relevant for calculating the loss suffered to the government. Accordingly he has submitted Part B of his reply dated 14.6.98 whereby he has requested that loss/shortage in the plants as per matrix data of 30.6.94 in case is worked out by substracting the figure of mortality rate would go to show that there has been no loss caused to the government. It was further stated that after receipt of the reply the Inquiry Officer has never called upon the petitioner to participate in the enquiry proceedings. No date for holding inquiry was ever fixed by Inquiry Officer. No statements were recorded nor any witness was examined nor the petitioner has been asked to cross-examine the same. As a matter of fact no formal enquiry as contemplated under Civil Services (Classification, Control and Appeal) Rules 1930 was held by the Inquiry Officer. The Inquiry Officer has straightaway submitted Inquiry report to the disciplinary authority on 5.2.99 holding that the charge levelled against the petitioner was found proved against him. Thereupon disciplinary authority vide letter dated 3.4.99 issued show cause notice to the petitioner enclosing therewith the copy of the enquiry report calling upon him to submit a reply of enquiry report within 15 days failing which it would be deemed that petitioner did not want to say anything in the matter and appropriate action shall be taken thereon. In response to the aforesaid show cause notice the petitioner submitted a comprehensive reply vide letter dated 16.4.1999 upon which he was asked to submit a reply in Hindi vide letter dated 24,9.99 which was received id the petitioner on 19.10.99 thereupon the petitioner submitted a comprehensive reply in Hindi on 20.10.99 and 26.11.99 contending therein that he was not responsible for any loss for the reason that the loss was within the acceptable mortality rate and the matrix data of 30.6.94 was relevant for working out the loss during the petitioner's tenure instead of matrix data of 30.9.93. On submission of the aforesaid reply after long lapse of time on 5.4.2003 the State Government has passed the impugned order whereby penalties referred to herein before have been inflicted upon the petitioner. A detailed counter affidavit has been filed on behalf of the respondents wherein the impugned action taken against the! petitioner has been sought to be justified by the respondent and petitioner has filed a Rejoinder affidavit whereby the stand taken in the writ petition has been reiterated and the averments contained in the counter affidavit have been refuted.
5. We have heard Sri K.M. Mishra learned counsel for the petitioner and the learned standing counsel for the respondents and also perused the record. Since affidavits have been exchanged between the parties and the case was ripe for final disposal therefore with the consent of the learned counsel for the parties the writ petition has been heard for final disposal at the admission stage itself.
6. The thrust of the submission of the learned counsel for the petitioner in nut-shell is that after reply of the charge-sheet submitted by the petitioner no formal inquiry was held against him rather straight-way an inquiry report has been submitted by the Inquiry Officer to the Disciplinary Authority holding the petitioner guilty of the charges levelled against him. Thereupon Disciplinary Authority has issued a show cause notice along with the inquiry report, asking the petitioner to submit his reply within 15 days which in turn was replied by the petitioner well within time but without considering the aforesaid reply in correct perspective the Disciplinary Authority proceeded to hold the petitioner guilty of charge levelled against him on the basis of said inquiry report and impugned order awarding major penalties has been passed against him. Virtually the inquiry report was prepared by the Inquiry Officer without holding any formal inquiry against the petitioner holding the petitioner guilty of the charges levelled against him. While elaborating his submission the learned counsel for the petitioner has submitted that after submission of reply of the charge sheet by the petitioner the inquiry Officer did never ask the petitioner to participate in the enquiry proceedings. He has never examined any witness to prove the charge levelled against the petitioner in the charge sheet in as much as the petitioner was never asked to cross examine any such witness if so examined by inquiry officer, as such whole inquiry was farce and inquiry report prepared by the Inquiry Officer without holding any formal and full-fledged inquiry against the petitioner and without adhering the provisions of the aforesaid Rules would amount to violation of the aforesaid Rules in as much as denial of opportunity of hearing to the petitioner to have his say in the matter. Thus whole exercise undertaken by the respondents in this regard is contrary to the provisions of the aforesaid Rules and provisions of Article 311(2) of the Constitution of India in as much as principles of Natural justice and fair play, therefore nullity and void abinitio. In support of his submission learned counsel for the petitioner has placed strong reliance upon averments contained in para 18, 19, 29, 31, and 32 of the writ petition and some reported decisions rendered in Subhash Chandra Sharma v. Managing Director and Anr., (2000) 1 UPLBEC 541, Girja Shankar Pant v. State of U.P. and Ors., 1998 (3) E.S.C. 2226 (All) and in Rajendra Prasad Tripathi v. State of U.P. and Ors., 2004 (4) AWC 3536 (LB), the same shall be dealt with herein after at relevant place.
7. The learned counsel for the petitioner has further urged that the charge sheet contains solitary charge against the petitioner that during the service tenure of petitioner at range in question the Audit objection with regard to the shortage of plants in nurseries were raised causing financial loss to the Government in tune of Rs. 5,23,588.56 due to the fact that the petitioner has failed to keep highest standard of integrity and devotion in due discharge of his duties without any other sort of imputation to the effect that he was any way negligent in discharge of his duties resulting which the Govt. has suffered such financial loss. According to the learned counsel even if the charge levelled against the petitioner may be taken as correct on its face value for the sake of arguments, the same does not constitute any misconduct more so warranting such major penalties, which have been inflicted upon the petitioner. As a matter of fact neither any such charge of negligence was levelled nor proved against the petitioner. In order to substantiate the aforesaid submission, learned counsel for the petitioner has placed strong reliance upon the averments contained in para 23, 26, 27 and 28 of the writ petition and copy of the charge-sheet contained in Annexure 3 of the writ petition and a decision of Hon'ble Apex Court rendered in Union of India and Ors. v. J. Ahmed .
8. Lastly learned counsel for the petitioner has further submitted that on merits too the charges levelled against the petitioner cannot be sustained for the reasons that short fall of plants were due to annual mortality rate of the plants grown in the nurseries on account of various factors and were within the prescribed mortality limits as contained in various Circulars of the department issued from time to time in this regard in as much as even if any short fall still remains the other persons who are inferior officer and subordinate to him could have been held liable to the extent of their responsibility fixed under the provisions of aforesaid Circulars issued from time to time in this regard and at any rate no liability upon the petitioner alone could have been fastened. Thus action taken against the petitioner is wholly arbitrary and illegal and not sustainable in the eye of law. In support of this submission learned counsel for the petitioner has placed strong reliance upon averments contained in the para 34 to 47 of the writ petition.
9. Contrary to it the learned standing counsel appearing for the respondents has submitted that the action taken by the respondents against the petitioner is well within the ambit of authority under law inasmuch as the charge levelled against the petitioner has been found proved against him by the Inquiry Officer and reply submitted by the petitioner against the finding of Inquiry Officer has also been considered by the State Government whereupon the petitioner was found guilty of charge levelled against him accordingly an appropriate punishment has been awarded to him which can not be called in question by the petitioner under Article 226 of the Constitution of India in the process of judicial review of administrative action. The writ petition filed by the petitioner is wholly misconceived accordingly liable to be dismissed.
10. Having gone through the rival contentions and submissions of the learned counsel for the parties following questions arise for consideration:
(i) what is content and scope of domestic/disciplinary inquiry and as to whether before taking impugned action against the petitioner the respondent has held any formal disciplinary inquiry as contemplated under Rule 55 Rules 1930 and/or Rule 7 of 1999 in as much as in consonance with the principles of natural justice?
(ii) As to whether on the face value of the charge sheet the acts or omission of the petitioner constitutes misconduct or not, more so warranting major penalties?
(iii) In the given facts and circumstances of the case as to whether the petitioner can be held responsible for the shortage of plants in nursery situated within his area and any consequential loss allegedly suffered by the government?
(iv) What relief if any to which the petitioner is entitled?
11. Now the first question arises for consideration before this Court is what is content and scope of domestic/disciplinary inquiry and as to whether before taking impugned action or holding the petitioner guilty of charge levelled against him any full-fledged formal disciplinary inquiry was held in consonance with Article 311(2) of the Constitution of India and Rules referred hereinbefore or principles of natural justice or not? In this connection at very out set it is necessary to point out that although ambit and scope of domestic/disciplinary inquiry is very wide and much comprehensive and is incapable of precise description because of its dimension and magnitude, therefore, cannot be reasonably encompassed in short judgment, but we would like to flash some light on the points having material bearing on the issue. In this regard it is necessary to point out that the petitioner was Government employee while impugned action imposing major penalties of reduction in rank and recovery of money for the loss caused to the government was taken against him, therefore, the provision of Article 311(2) of the Constitution of India as well as Rule 55 of Civil Service (Classification, Control and Appeal) Rules, 1930, (hereinafter referred to as Rules 1930 and Rule 7 of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules, 1999) which are fully attracted and are quoted as under :-
Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or Stall' (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall he dismissed, or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may he imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-]
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the governor, as the case may be, is satisfied that in the interest of the security of the Slate it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]"
Rule 55 of Civil Services (Classification, Control & Appeal) Rules, 1930 as applicable in U.P. which is quoted below :
55. (1) Without prejudice to the provisions of the Public Servant Inquiries Act, 1850, an order (other than an order based on facts which had led to his conviction in a criminal court or by a court-martial) of dismissal, removal or reduction m rank ( which includes reduction to a lower post or time scale, or to a lower stage in a time scale but excludes the reversion, to a lower post of a person who is officiating in a higher post) shall be passed on a person who is member of a Civil Service, or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The Grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the charged Government servant of the facts and circumstances against him. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires, or if the authority concerned so directs, an oral inquiry shall be held in respect of such of the allegation as are not admitted. At that inquiry such oral evidence will he heard as the inquiring officer considers necessary. The person charged shall he entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The officer conducting the inquiry may also " separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged Government servant.
(2) where the punishing authority itself inquires into any charge or appoints an Inquiring Officer for holding an inquiry into such charge, the punishing authority, if it considers it necessary to do so, may, by an order, appoint a Government servant or a legal practitioner, to be known as "Presiding Officer" to present on its behalf the case in support of the charge.
(3) The Government servant may take the assistance of any other Government servant to present the case on his behalf, but not engage a legal practitioner for the purpose unless the presenting officer appointed by the punishing authority is a legal practitioner or the punishing authority having regard to the circumstances of the case, so permits.
(4) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule those requirements can in the opinion of the inquiring officer be waived without injustice to person charged.
(5) This rule shall also not apply where it is proposed to terminate the employment of either a temporary Government servant or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination, which in the case of a temporary Government servant must conform to the conditions of his service, will be sufficient.
Rule 7 of Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999.
7. Procedure for imposing major penalties. Before imposing any major penalty on a government servant, an inquiry shall he held in the following manner:
(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.
(ii) The facts constituting the misconduct on which it is proposed to lake action shall he reduced in the form of definite charge or charges to be called charge-sheet. Provided that where the Appointing Authority is Governor, the charge-sheet may he approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.
(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge-sheet.
(iv) The charged Government servant shall be required to put in a written statement of his defence in person or a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte.
(v) The charge-sheet along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall he served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not he served in aforesaid manner, the charge-sheet shall he served by publication in a daily news paper having wide circulation:
Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall he permitted to inspect the same before the Inquiry Officer.
(vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission.
(vii) Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses. 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 defence.
Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.
(viii) The Inquiry Officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance wit the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents), Act 1976.
(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.
(x) where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.
(xi) The Disciplinary Authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge.
(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits:
Provided that this rule shall not apply in following cases
(i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.
12. Rule 8 provides for submission of inquiry report by Inquiry Officer to the Disciplinary Authority, along with all the records of the inquiry, on completion of such inquiry. Rule-9 provides for action on enquiry report, which inter-alia provides that the Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of charged Government servant if any and subject to provisions of Rule -16 of these rules pass a reasoned order either exonerating the charged Government servant or imposing one or more penalties mentioned in Rule -3 of these rules and communicate the same to the charged Government servant. The disciplinary authority may for reasons to be recorded in writing remit the case for re-enquiry to the same or any other enquiry officer under intimation to the charged government servant. In case the Disciplinary Authority disagrees with the findings of enquiry officer on any charge it is also open for him/her to record own findings thereon for reasons to be recorded.
13. At this juncture it is necessary to mention here that the disciplinary inquiry has been initiated against the petitioner in the year 1998 when the Inquiry Officer has been appointed by the State Government and charge sheet dated 8.5.1998 was issued and served upon him by that time Rules 1930 was in operation and Rule 55 was holding the field on the subject in issue. Later on during the course of enquiry Rules 1999 came into force w.e.f. 9th June, 1999 and by virtue of Rule 17 of Rule 1999, Rules 1930 has been rescinded and in view of Clause 2(b) of the aforesaid Rule 17 the pending enquiry against the petitioner on the date of coming into force of the new Rule have to be continued and concluded in accordance with the provisions of new Rules. Accordingly the impugned order has been passed by the State Government, while concluding the disciplinary inquiry pending against the petitioner under the provision of new Rule 1999. For ready reference Rule 17 of 1999 Rules is reproduced as under :-
17. Rescission and savings. (I) The Civil Service (Classification, Control and appeal) Rules, 1930 and the Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932 are hereby rescinded.
(2) Notwithstanding such rescission.
(a) Delegation of power mentioned in punishment and Appeal Rules for Subordinate Services Uttar Pradesh, 1932 and any order issued under the Civil Service (Classification, Control and Appeal) Rules, 1930 or Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh 1932 delegating the power of imposing any of the penalties mentioned in Rule 3 or power of suspension the any authority shall be deemed to have been issued under these rules and shall remain valid unless canceled or rescinded.
(b) any inquiry appeal, revision or review pending on the date of coming into force of these rules shall be continued and concluded in accordance with the provisions of these rules;
(c) nothing in these rules shall operate to deprive any person of any right of appeal revision or review which he would have had if these rules had not been in force in respect of any order passed before the commencement of these rules and such appeal, revision or review shall be preferred under these rules and disposed of accordingly as if the provisions of this rule were in force at all material times.
14. From plain reading of main provisions of Article 311(2) of the Constitution of India it is clear that no person shall be dismissed or removed or reduced in rank except after an enquiry in which he had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It means that "before any such action is taken against the delinquent government employee an enquiry has to be held against him and in such enquiry he has to be informed precisely the charges levelled against him. Thereupon he has to be given reasonable opportunity of being heard in respect of those charges. In substance the provisions contained under Article 311(2) of the Constitution of India embodies Audi Alteram Partem rules of the principle of natural justice and fair play Similarly. From a plain reading of Rule 55(1) of old Rules 1930 it is clear that a delinquent government employee is required to be informed in writing of the ground on which the action is proposed to be taken against him and has to be afforded an adequate opportunity of defending himself. The ground on which it is proposed to take action shall be reduced in the form of definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the Government servant of the facts and circumstances against him. He shall be required within reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person if be(sic) so desires the enquiry shall be held in respect of such allegations as are not admitted. In that enquiry such oral evidence will be heard, as the Inquiry Officer may considers necessary. The person charged shall be entitled to cross examine the witness, to give his evidence in person and to have such witnesses called as he may wish provided that the officer conducting enquiry may for sufficient reasons to be recorded in writing refuses to call a witness.
15. Likewise from a bare perusal of Rule 7 (iii), (iv) and (v) of Rule 1999 it is clear that the charges framed against the Government servant shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and name of witness proposes to prove the same along with oral evidence if any shall be mentioned in the charge sheet. The charged Government servant shall be required to put in written statement of his defence in person and to state whether he desires to cross examine any witness mentioned in the charge sheet and whether he desires to give or produce evidence in his defence. The charge sheet along with the copy of the documentary evidence mentioned therein and the list of the witnesses along with their statement if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official record. In case the charge sheet could not be served in the aforesaid manner the same may be published in daily newspaper having wide circulation. In Clause (vi) of Rule 7 the provisions has been made to the effect that where a charged Government servant appears and admits charges the Inquiry Officer shall submit his report to the Disciplinary Authority on the basis of such admission. Clause (vii) of Rule 7 of the aforesaid Rule provides that if the charged Government servant denies the charge, the Inquiry Officer shall proceed to call the witness proposed in the charge sheet and record their oral evidence in presence of charged Government servant who shall be given an opportunity to cross examine such witness. After recording the aforesaid evidence the Inquiry Officer shall call and record the oral evidence which the charged Government servant desires in his written statement to be produced in his defence provided that the enquiry officer may for the reasons to be recorded in writing refuses to call such witness.
16. From a joint reading of the aforesaid Clauses of Rule 7 of new Rules 1999 it is clear that if the charges levelled in the charge sheet are not admitted by the delinquent employee the Inquiry Officer is required to hold inquiry for proving the charges levelled in the charge sheet. For that purpose the Inquiry Officer is required to call the witness proposed in the charge sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross examine such witnesses after recording aforesaid evidence the Inquiry Officer shall call and record the oral evidence which the delinquent Government servant desires in his written statement to be produced in his defence. In other words, the aforesaid provisions make it clear that where the charges levelled in the charge sheet is either not admitted or denied by the delinquent employee it is boundened duty of the Inquiry Officer to hold the inquiry for proving the aforesaid charges by documentary and oral evidence in presence of the delinquent employee and by asking him to cross examine the witnesses if he so desires and adduce his own oral and documentary evidence in his defence. Thus from the reading of the new and old rule both referred to above it leaves no room for doubt to hold that where a delinquent employee either does not admit or denied the charges levelled in the charge sheet, the enquiry officer is required to hold the inquiry for proving the charges in the manner indicated herein above and he cannot straightaway without holding such enquiry submit any inquiry report holding the. delinquent employee guilty of the charges levelled in the charge sheet. It is only in case where the delinquent employee appears before the Inquiry Officer and admits the charges levelled against him in that situation alone Inquiry Officer need not to hold inquiry and can submit inquiry report directly and straight-way on the basis of such admission holding the delinquent government servant guilty of such charges levelled against him and in no other situation.
17. From plain reading of Clause (iv) of Rule 7 of 1999 Rules it is clear that the charged Government servant shall be required to put in a written statement of his defence in person within a period specified in the charge sheet which shall be not less than 15 days from the date of issue of charge sheet. In such a written statement or reply of charge sheet the delinquent employee has to state as to whether he desires to cross examine any witness mentioned in the charge sheet and as to whether he desires to produce evidence in his defence. The delinquent employee shall also be informed that in case he does not appear or file written statement/reply on the specified date it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry exparte. Clause (x) of the aforesaid Rules provides that where a charged Government servant failed to appear on the date fixed in the enquiry or at any stage of proceeding insptte of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry exparte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge sheet in the absence of Government servant.
18. Thus from the aforesaid provisions it is clear that Inquiry Officer can hold the enquiry exparte in two situations. Firstly inspite of service of charge sheet the delinquent employee does not reply the charge sheet within time stipulated in the charge sheet which shall not be less than 15 days from the date of issue of charge sheet and in such situation it shall be presumed that delinquent employee has nothing to say in respect of the charges levelled against him and Inquiry Officer shall proceed to complete the enquiry exparte and secondly where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of proceeding inspite of service of notice on him or having knowledge of the date the Inquiry Officer shall proceed with the enquiry exparte. In such situation the Inquiry Officer shall record the statements of witnesses mentioned in the charge-sheet in the absence of charged Government servant. The aforesaid provisions clearly indicate that even if the charge sheet has not been replied by the delinquent employee or the delinquent employee does not appear in the inquiry proceedings despite notice of the date fixed for such inquiry, the Inquiry Officer can proceed to hold only exparte enquiry even in the absence of delinquent employee on the basis of documentary and oral evidence mentioned in the charge sheet but he cannot escape from holding such exparte enquiry even in the absence of delinquent employee and straightway submit an inquiry report holding the delinquent employee guilty of the charges without holding such ex-parte inquiry meaning thereby the Inquiry Officer cannot submit inquiry report straight-way holding the charged employee guilty of the charges levelled in the charge-sheet either without holding formal full fledged inquiry or without holding exparte inquiry in the manner indicated hereinbefore.
18-A. Thus refusal to reply the charge-sheet by the charged government servant despite service of charge-sheet upon him/her no doubt permits the inquiry officer to presume that the delinquent employee has nothing to say about it but it does not permit to presume that the delinquent employee has admitted the charges levelled in the charge-sheet. Similarly failure or refusal to participate in inquiry despite notice or knowledge of date fixed for such inquiry also does not permit the inquiry officer to raise any presumption of admission of guilt by delinquent employee rather the inquiry officer is required to hold ex-parte inquiry from the aforesaid stage because of the simple reason that in both the situations relevant rules do not admit any ambiguity and clearly indicates the necessary consequence flowing there from for holding ex-parte inquiry. It is only in a situation contemplated under Clause (vi) of Rule 7 of the Rules alone the inquiry officer can straight-way submit a report to Disciplinary Authority without holding any formal inquiry, where the charges are admitted by charged government servant and in no other situation. The ex-parte inquiry should not be confused and equated with no formal inquiry accordingly would not permit the Inquiry Officer to submit inquiry report finding the charged employee guilty of the charges levelled against him without holding any such formal disciplinary inquiry. Therefore a distinction has to be always borne in mind in the aforesaid two categories of cases, i.e. (i) based on admission and (ii) situations warranting an exparte inquiry. The aforesaid principle shall also apply with necessary modifications where the inquiry is held by Disciplinary Authority.
19. Under the Old Rules of 1930, also similar provisions were made without heavily wording the same, wherein Inquiry Officer was liable to hold formal inquiry in respect of the charges not admitted by the delinquent Government servant of the charges levelled in the charge-sheet. The requirement of the applicability of Rules 55(i) of the rules was excluded in cases of an order based on facts which has led to the conviction of delinquent employee in a criminal court or by court martial, and to the extent indicated in Clause (4) of Rule 55 of 1930 Rules only in the situations visualized there under in the manner indicated therein and no other situation therefore under old rule also the exparte inquiry could be held in the situations warranting for holding such ex-parte inquiry.
In this connection a reference can be made to Imperial Tobacco Co. Ltd. v. Its Workmen, wherein the Hon'ble Apex Court has held even if an employee refuses to participate in the inquiry the employer cannot straightway dismiss him but he must hold an exparte enquiry where the evidence must be led to prove charges levelled against him.
20. Thus on a joint reading of the provisions of Article 311(2) of the Constitution inasmuch as relevant provisions of statutory rules referred hereinbefore it is clear that Audi-Alteram Partem Rules which is a facet principles of natural justice are embodied thereunder. Now question arises to be considered that what is true import and reach of the said rule of natural justice in domestic enquiry in disciplinary proceedings vis-a-vis aforesaid provisions of the Constitution of India and statutory rules? In this connection a reference can be made to a decision of Apex Court rendered in Khem Chand v. Union of India, wherein while interpreting the phrase a reasonable opportunity of showing cause against the action proposed to be taken in regard to him" in Sub-section (3) of Section 240 of the Government of India Act, 1935, which was repeated in Clause (2) of Article 311 as originally enacted, that is, in the said clause prior to its amendment by the Constitution (Fifteenth Amendment) Act, 1963, approving the construction placed by the Judicial Committee in High Commissioner for India v. I.M. Lall, AIR 1948 PC 121 in para 19 of the decision at page 307 of the report Hon'ble Apex Court observed as under:
"It is true that the provision does not, in terms, refer to different stages at which opportunity is to be given to the officer concerned. All that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the government servant should have the opportunity, to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given in much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. If this is the correct meaning of the clause, as we think it is, what consequences follow? If it is open to the government servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit and punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.
To summarise : the reasonable opportunity envisaged by the provision under consideration includes--
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant. In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240(3) of the Government of India Act, 1935 so as to give a statutory protection to the government servants and has now been incorporated in Article 311(2) so as to convert the protection into a constitutional safeguard."
21. In Meenglas Tea Estate v. The Workmen, . In para 24 of the said judgment Hon'ble Apex Court while examining the nature and scope of domestic enquiry held as under :-
" It is an elementary principle that a person, who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can he accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statements made by any witness tendered in evidence. The enquiry, such as it was, made by Mr. Marshall or Mr. Nichols who were not only in the position of judges but also of prosecutors & witnesses. There was no opportunity to the persons charged to cross-examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of the principles of natural justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it. "
22. In State of U.P. and Anr. v. C.S. Sharma AIR 1968 SC 118 the Hon'ble Apex Court has held that omission to give opportunity to the officer to produce his witness and lead evidence in his defence vitiates the proceedings. The decision was rendered in context of Rule 55 (i) and (iii) of the Rule 1930. While deciding the issue the Hon'ble Apex Court has drawn the distinction between the two categories of cases of this nature within the scope of Sub-rule 1 and Sub-rule 3 of the aforesaid Rule and in para 6 of the decision held as under :-
"6. The first question is whether this inquiry was made under Sub-rule (I) or (3) of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is an admitted fact that Sharma was a temporary employee and therefore his case would fall to be governed by Sub-rule (3) of Rule 55 if it could be said that the enquiry which was being made was for a specific fault or on account of his unsuitability for service. Sub Rule (1) of Rule 55 is a general rule for enquiries where the conduct of a person is inquired into for misconduct but Sub-rule (3) says that sub-rule shall not apply where it is proposed to terminate the employment of a probationer or to dismiss, remove or reduce in rank a temporary Government servant for any specific fault or on account of his unsuitability for the service. Sub-rule (3) says that in such cases, the probationer or temporary Government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority. If the third sub-rule applied, it is obvious that the kind of enquiry made complied with its requirements. The first sub-rule, however, provides for a full-blooded enquiry which is the counter-part of a regular trial witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent officer to cross-examine them and to lead evidence in his defence. In our judgment the present case was governed by the first sub-rule and not the third sub-rule. The third sub-rule deals with the unsuitability of an officer for the service or with a charge for any specific fault. This fault means a fault in the execution of his duties and not a misconduct such as taking bribe etc. which are charges of a more serious nature affecting the character of the individual concerned. The collocation of the words 'any specific fault' or 'on account of unsuitability for service' give the clue of the distinction between the third sub-rule and the first sub-rule. An officer who is, for example, habitually lazy or makes mistakes frequently or is not polite or. decorous may be considered unsuitable for the service. Another officer who makes a grievous default in the execution of his work may he charged for the specific individual fault, that is a dereliction or deject in the execution of that duty. where there is an allegation mat an officer is guilty of a misconduct such as accepting bribe or showing favours, the matter is not one of specific fault in the execution of his work but something more. That matter will fall to be governed by the first sub-rule because you cannot charge a man with criminal conduct without affording him adequate opportunity to clear his character Mr. Aggarwal fairly pointed out that the Government had appointed the enquiring officer to take action under Rule 55(1) and it is thus quite clear that Government viewed the matter also in this light."
23. In this regard while taking note of earlier decisions, the situation after Forty-second Amendment in Article 311 has been dealt with by a constitution Bench of Hon'ble Apex Court in Union of India and Anr. v. Tulsiram Patel, of the decision as under:
"68. The question which then arises is, "whether the Constitution (Forty-second Amendment) Act, 1976, which further amended substituted Clause (2) of Article 311 with effect from 1st January 1977, has made any change in the law?" The amendments made by this Act are that in Clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government servant was deleted and in its place the first proviso was inserted, which expressly provides that it is not necessary to give to a delinquent government servant any opportunity of making representation on the proposed penalty. Does this affect the operation of the original proviso which, by the Constitution (Forty-second Amendment) Act, became the second proviso? Such obviously was not and could not have been the intention of Parliament. The opening words of the second proviso remain the same except that the word 'farther' was inserted after the word 'Provided", because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show cause notice at the punishment stage was originally there as a result of the interpretation placed by the judicial Committee in Lall's Case (AIR 1948 PC 121) and by this Court in Khem Chand's Case upon the phrase a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". Clause (2) as substituted by the Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chand's Case. The words which originally found a place in Clause (2), "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ", do not any more feature in Clause (2). All that Clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2) taken by itself even without the first proviso does not provide, expressly or impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of Clause (2), which part was deleted by the Constitution (Forty-second Amendment) Act. Thus, when the second proviso states in its opening words that "provided further that this clause shall not apply", it means that whatever safeguards are to be found in Clause (2) are wholly taken away in a case where any of the three clauses of the second proviso is attracted. In this connection, the following, observations of this Court in the case of Suresh Koshy George v. University of Kerala, are pertinent:
"There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to he followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. "
In Associated Cement Companies Ltd. v. T.C. Shrivastava, , this Court held that "neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary". Since a right to such opportunity does not exist in law, it follows that the only right which the government servant had to make a representation on the proposed penalty was to be found in Clause (2) of Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act. This right having been taken away by the Constitution (Forty-second Amendment) Act, there is no provision of law under which a government servant can claim this right. "
24. Thus after Forty-second Amendment in the Constitution of India the provisions pertaining to right of government servant to make a representation against the proposed penalty as was found in Clause (2) of Article 311 prior to its amendment by the Constitution (Forty-second Amendment) Act has been deleted, thus having been taken away by the said amendment and instead thereof in the first proviso to Article 311(2) a phrase "and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed" has been inserted. Thus the position as stood thereafter in respect of a reasonable opportunity of showing cause or reasonable opportunity of being heard in respect of the charges was limited to the extent of Clause (a) and (b) as summarized by Hon'ble Apex Court in Khem Chand case (supra). The opportunity to make representation in connection of proposed punishment after enquiry is over as summarized in Clause (c) of para-19 of the aforesaid decision was treated to be taken away by (Forty-second Amendment) of the Constitution of India as there remains no such provision in law under which a government servant could claim this right. The aforesaid legal position settled in Tulsi Ram Patel's case was followed by Honlble Apex Court in subsequent decision rendered in Ram Chander v. Union of India and in other subsequent decisions including in Union of India v. E. Bashya AIR 1988 SC 1000, but in Union of India v. Mohd. Ramzan Khan the aforesaid legal position has been crystallised and it was held that right to make representation to the Disciplinary Authority against the finding recorded in inquiry report is an integral part of the opportunity of defence against the charges and is breach of principle of natural justice to deny the said right. The said right includes in it right to receive copy of inquiry report where the Inquiry Officer is other than Disciplinary Authority. For ready reference the observation made by Hon'ble Apex Court in para 13 and para 15 of the decision reads as under :-
"13. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusion. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the Disciplinary Authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.
15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendatums, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position."
25. The aforesaid position has been reiterated and further crystallised by a constitution bench of Hon'ble Apex Court in a decision rendered in Managing Director E.C.I.L. v. B. Karunakar, , in para 7 of the decision held as under :-
" Hence it has to be held that when the Inquiry Officer is not the Disciplinary Authority, the delinquent employee has 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 employee to have the report to defend himself effectively, and her would not know 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 (Supra) 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. "
26. While explaining the import and meaning of Audi-Alteram Partem Rules in domestic/disciplinary enquiry Hon'ble Apex Court in para 96 of the decision in Tulsiram Patel's case has held as under:
"96. The rule of natural justice with which we are concerned in these Appeals and Writ Petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. If we look at Clause (2) of Article 311 in the light of what is stated above, it will be apparent that that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14 as a result of the interpretation placed upon that Article by recent decisions of Apex Court. Clause (2) of Article 311 requires that before a government servant is dismissed, removed or reduced in rank, an inquiry must be held in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The nature of the hearing to be given to a government servant under Clause (2) of Article 311 has been elaborately set out by this Court in Khem Chand's case in the passages from the judgment extracted above. Though that case related to the original Clause (2) of Article 311, the same applies to the present Clause (2) of Article 311 except for the fact that now a government servant has no right to make any representation against the penalty proposed to be imposed upon him but, as pointed out earlier, in the case of Suresh Koshy George v. University of Kerala, , such an opportunity is not the requirement of the principles of natural justice and as held in Associated Cement Companies Ltd. v. T.C. Shrivastava, neither the ordinary law of the land nor industrial law requires such an opportunity to be given. The opportunity of showing cause against the proposed penalty was only the result of the interpretation placed by the Judicial Committee of the Privy Council in Lall's case (AIR 1948 PC 121) upon Section 240(3) of the Government of India, Act, 1935, which was accepted by this Court in Khem Chand's case. If, therefore, an inquiry held against a government servant under Clause (2) of Article 311 is unfair or biased or has been conducted in such a manner as not to give him a fair or reasonable opportunity to defend himself, undoubtedly, the principles of natural justice would be violated, but in such a case the order of dismissal, removal or reduction in rank would be held to be bad as contravening the express provisions of Clause (2) of Article 311 and there will be no scope for having recourse to Article 14 for the purpose of invalidating it."
27. Again while explaining the content and reach of the principles of natural justice in domestic enquiry in para 27 of the decision rendered in State Bank of Patiala and Ors. v. S.K. Sharma , the Hon'ble Apex Court has held as under :-
"27. The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk (1949) 1 All ER 109 way back in 1949, these principles cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commissioner, . The objective is to ensure a fair hearing, a fair deal to the person whose rights are going to be affected. (See A.K. Roy v. Union of India and Swadeshi Cotton Mills v. Union of India, . As pointed out by this Court in A.K. Kraipak v. Union of India, , the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable - a fact also emphasized by House of Lords in C.C.U. v. Civil Services Union (supra) where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the stand point of fair hearing applying the test of prejudice, as it may be called-that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding-which may result in grave prejudice to public interest. It is for this reason that the rule of post decisional hearing as a sufficient compliance with natural justice was evolved in some of the case, e.g. Liberty Oil Mills v. Union of India . There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2) or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries : a distinction ought to be made between violation of the principles of natural justice and alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice", "no hearing" and "no adequate hearing" or to put it in different words, " no opportunity" and "no adequate opportunity." To illustrate -take a case where the person is dismissed from service without hearing him altogether [as in Ridge v. Baldwin, 1964 AC 40. It would be a case falling under the first category and the order of dismissal would be invalid-or void, if one chooses to use that expression (Calvin v. Carr, 1980 AC 574). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, E.C.I.L. v. B. Karunakar, 1994 AIR SCW 1050 or without affording him a due opportunity of cross examining a witness (K.L. Tripathi, AIR 1994 SC 273), it would be a case falling in the latter category -violation of a facet of the said rule of natural justice -in which case, the validity of the order has to be tested on the touch stone of prejudice, i.e. whether, al in all, the person concerned did or did not have a fair hearing. It would not be correct - in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunakar should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity. "
28. Now further question arises for consideration as to whether audi alteram partem rule of natural justice have any application in respect of the three categories of cases where the applicability of the provisions of Article 311(2) have been excluded by second proviso of the aforesaid Article in situations envisaged thereunder or in respect of similar or analogous provisions contained in statutory service rules? In this connection at very out set it is necessary to mention that by the second proviso to Article 311(2) of the Constitution, the applicability of the provisions of Article 311(2) has been expressly excluded in three categories of cases mentioned therein thereby protection of reasonable opportunity of hearing as a safeguard provided to the Government servant has been taken away by the second proviso to Article 311(2) of the Constitution itself viz (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor as case may be, is satisfied that in the interest of the security of the state it is not expedient to hold such inquiry. The aforesaid question was directly under consideration before the Apex Court in Tulsi Ram. Patel's case (supra). In para 99 of the decision while referring earlier decision rendered in Union of India v. Col. J.N. Sinha, wherein it was observed that in Kraipak v. Union of India, this court observed that the aim of rule of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in area not covered by any law validly made. In other words they do not supplant the law but supplement it. It is true that if a statutory provision can be read consistently with the principles of natural justice the court should do so because it must be presumed that the legislature and the statutory authorities intended to act in accordance with the principles of natural justice. But if on other hand a statutory provision either expressly or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of legislature or statutory authority and read into the concerned provision the principles of natural justice. In para 100 of the decision a reference was made to a decision rendered in Swadeshi Cotton Mills v. Union of India, , wherein Hon'ble Apex Court has held that where authority functions under a statute and statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other manner. No wider right than that provided by statute can be claimed nor can the right be narrowed. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being express words of statute or by necessary intendment.
29. Thereafter in para 101 of the decision while making reference of case of Mohapatra & Co. v. State of Orrisa, and Maneka Gandhi v. Union of India, , the Hon'ble Apex Court held as under:
"101. ... If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule, a fortior so can a provision of the Constitution, for a Constitutional provision has afar greater and all-pervading sanctity than a statutory provision. In the present case, Clause (2) of Article 311 is expressly excluded by the opening words of the second proviso and particularly its keywords "this clause shall not apply". As pointed out above, Clause (2) of Article 311 embodies in express words the audi alteram partem rule. This principle of natural justice having been expressly excluded by a Constitutional provision, namely, the second proviso to Clause (2) of Article 311, there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the Constitutional provision has expressly prohibited. Where a clause of the second proviso is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying it would be malafide, and, therefore, void. In such a case the invalidating factory may be referable to Article 14. This is, however, the only scope which Article 14 can have in relation to the second proviso, but to hold that once the second proviso is properly applied and Clause (2) of Article 311 excluded, Article 14 will step in to take the place of Clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution-makers who inserted it in Article 311(2) were best persons to decide whether such an exclusionary provision should be there and the situations in which this provision should apply. "
30. Now next incidental question arises for consideration as to what would be effect of the statutory provisions' contained in service rules in variance of the situations envisaged in second proviso of Clause (2) of Article 311 of the Constitution? In this connection it is necessary to point out that the Rules made under the proviso to Article 309 or under the Act referable to that Article very often reproduce in or in part the provisions of second proviso to Article 311(2) either in the same or substantially the same language or with certain variations. Such variations are intended to confer an opportunity of hearing to a government servant, which is excluded by the second proviso. The question arises to be considered as to whether such a course would be legally permissible or not? While answering the question in negative in para 106 of the decision in Tulsi Ram Patel's case (supra) the Hon'ble Apex Court has held as under:-
"106. It is not possible to accept this submission. The opening words of Article 309 make that Article expressly "Subject to the provisions of this Constitution". Rules made under the proviso to Article 309 or under Acts referable to that Article must, therefore, be made subject to the provisions of the Constitution if they are to be valid. Article 310(1) which embodies the pleasure doctrine is a provision contained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that Article are subject to Article 310(1). By the opening words of Article 310(1) the pleasure doctrine contained therein operates "Except as expressly provided by this Constitution". Article 311 is an express provision of the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 310(1) and Article 311. This position was pointed out by Subba Rao, J., as he then was, in his separate but concurring judgment in Moti Rant Deka's case , namely, that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311. Thus, as pointed out in that case, any rule which contravenes Clause (1) or Clause (2) of Article 311 would be invalid. Where, however, the second proviso applies, the only restriction upon the exercise of the pleasure of the President or the Governor of a State is the one contained in Clause (1) of Article 311. For an Act or a rule to provide that in a case where the second proviso applies any of the safeguards excluded by that proviso will be available to a government servant would amount to such Act or rule impinging upon the pleasure of the President or Governor, as the case may be, and would be void as being unconstitutional.... In such a case breach of such statutory provision would not furnish any cause of action or ground of challenge to a government servant for at the very threshold, such cause of action or ground of challenge would be barred by the second proviso to Article 311(2)."
31. Thus on a survey of case laws referred herein before in respect of applicability of audi alteram partem rule of natural justice and provisions of Article 311(2) and relevant statutory service rules referred hereinbefore in domestic enquiry it is clear that some light has been flashed to emphasise the issue but several other aspects of the matter are still remains to be focussed such as to whether the proceedings in the disciplinary inquiry are required to be conducted like proceedings in regular court? As to whether the strict rules of evidence are applicable in domestic enquiries as applies generally in civil or criminal proceedings in regular court? What is standard of proof in domestic enquiry and so on? Therefore, in this regard it would be useful to refer some case law having material bearing on the issue hereinafter.
32. In Union of India v. T.R. Verma while taking note of applicability of rules of evidence in a domestic enquiry. In para 10 of the decision the Hon'ble Apex Court has held as under :-
"10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act: but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law.
Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross examining the witnesses examined by that party and that no materials should be relied on against him without his being given an opportunity explaining them.
If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co. (C) where this question is discussed."
33. In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan A.I.R. 1961 Supreme Court 1623 Hon'ble Apex Court has held that in domestic inquiry the procedure followed in courts is not required to be followed: For ready reference. Relevant portion of para 10 of the decision is reproduced as under:-
"In such matters it is difficult and inexpedient to lay down any general rules, whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiry should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in courts of Law. As Venkatarama Aiyar, J. has observed in Union of India v. T.R. Varma "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them ". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."
34. The aforesaid view has been reiterated by Hon'ble Apex Court in State of Mysore and Ors. v. Shivabasappa Shivappa Makapur . While dealing with scope of standard of proof in domestic inquiry in para 3 and 6 of the decision the Hon'ble Apex Court has held as under :-
"3. For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not courts and that therefore they are not bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts.
"6. It is on the observation that "the evidence of the opponent should be taken in his presence "that the decision of the learned Judges that the evidence of witnesses should be recorded in the presence of the person against whom it is to be used is based. Read literally the passage quoted above is susceptible of the construction which the learned Judges have put on it, but when read in the context on the facts stated above, it will be clear that that is not its true import. No question arose there as to the propriety of admitting in evidence the statement of a witness recorded behind the back of a party. The entire oral evidence in that case was recorded before the enquiring officer, and in the presence of the petitioner. So there was no question of a contrast between evidence recorded behind a party and admitted in evidence against him, and evidence recorded in his presence. What was actually under consideration was the procedure to be followed by quasi-judicial bodies in holding enquiries and the decision was that they were not bound to adopt the procedure followed in Courts, and that it was only necessary that rules of natural justice should be observed. Discussing next what those rules required, it was observed that the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities & rules of natural justice are matters not of form but of substance. In our opinion they are sufficiently complied with when previous statements given by witnesses are read over to them marked on their admission, copies thereof given to the person charged, and he is given an opportunity to cross-examine them. "
35. In Andhra Pradesh and Ors. v. Sree Rama Rao , the Hon'ble Apex Court in para 7 of the decision held as under :-
"7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. "
36. In Bareilly Electricity Supply Company v. Workmen and Ors. while dealing with the scope of standard of proof in disciplinary/domestic inquiry in para 14 of the decision the Hon'ble Apex Court has held that the application of principle of natural justice in domestic enquiry does not imply that what is not evidence can be acted upon. For ready reference the relevant portion of para 14 of the judgment is reproduced as under :-
"But the application of principle of natural justice does not imply that what is not evidenced can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt. "
37. In Union of India v. Sardar Bahadur and Anr. the Hon'ble Apex Court in para 15 of the decision has held as under :-
"A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one, which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court."
38. In State of Haryana and Anr. v. Rattan Singh the Hon'ble Apex Court has held that it is well settled that in a domestic enquiry the strict and sophisticated rule of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. For ready reference relevant portion of para 4 of the decision is quoted below:-
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. "
39. In Jai Ram Panda v. D.V. Raiyani and Ors. (FB). A Full Bench of Orissa High Court while dealing with the impact of acquittal in criminal case upon the departmental enquiry in para 11 of the decision held as under :-
" The object of holding a departmental enquiry is entirely different, i.e. whether the delinquent is guilty of any misconduct or delinquency and the mere fact that the enquiring officer may reach a conclusion different from that recorded by the criminal court does not abridge his right. There is no constitutional statutory or legal bar on the basis of which it can be held that a departmental enquiry is bad in view of the order of acquittal recorded by a criminal court. Once the cardinal difference between a criminal proceeding and a disciplinary proceeding is kept in mind, there would be no scope for any confusion on this account. The dominant purpose of a criminal proceeding is " to achieve the protection of the public " while that in the disciplinary proceedings is " purity and efficiency of public service". Obviously, . therefore the fields of operation of the two proceedings are quite different and independent. In a disciplinary proceeding, the strict rules of evidence and the standard of proof are also not required as in a criminal trial."
40. In Nelson Motis v. Union of India and Anr. . While dealing with the impact of acquittal in criminal trial on disciplinary proceeding against the delinquent employee, in para 5 of the decision the Hon'ble Apex Court has held as under :-
"5. So far the first point is concerned, namely whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case."
41. In State of Karnataka and Anr. v. T. Venkataramnappa where the charge of bigamy against the government employee for the purpose of misconduct under relevant service Rule was under consideration. The respondent, a police constable was prosecuted for having contracted second marriage. He was discharged for want of evidence. A departmental enquiry was instituted against him for having contracted second marriage for which he was suspended. He approached the Karnataka Administrative Tribunal against the order of suspension and for stopping the enquiry against him on the ground that criminal court had discharged him of the offence of bigamy. Tribunal accepted the stand of respondent quashed the departmental proceeding and lifted the suspension in appeal filed by State before the Hon'ble Apex Court their lordship of Supreme Court has held as under :-
"There is a string of judgments of this Court whereunder strict proof of solemnization of the second marriage, with due observance of rituals and ceremonies, has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka civil Service Rules, which forbids a Government servant to marry a second time without the permission of the Government. But here the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494 IPC may not, to begin with, be necessary."
42. In Lalit Popil v. Canara Bank and Ors. . While relying upon earlier decision rendered in B.K. Meena's case in para 16 of the decision Hon'ble Apex Court has held as under:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceeding the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him 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 are conceptually different."
[See State of Rajasthan v. B.K. Meena and Ors. ]. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct. "
43. Thus from the aforesaid discussion it is clear that although there is some resemblance in criminal trial and in domestic enquiry but while dealing with the case of domestic enquiry the well known features of distinction between them may also be borne in mind. There is vast difference between criminal trial and domestic enquiry. As the rule to prove the offence in criminal trial beyond reasonable doubt is not applicable in proving the . misconduct in disciplinary proceeding the standard of proof in both the cases are also different altogether. The strict rule of evidence is also not applicable in disciplinary proceeding in domestic enquiry. It is also well settled that the domestic tribunal is not bound by several rules that are binding for appreciation of evidence by a criminal court. As for instance a criminal court can not accept the evidence of a accomplice unless corroborated by other materials while departmental enquiry may based its finding on the uncorroborated testimony of a witness. Purpose and object of criminal trial are also very much different from those of departmental and disciplinary inquiry.
44. Thus from a conspectus of whole issue it is clear that before holding an employee guilty of misconduct warranting major penalties it is necessary to hold a full-fledged enquiry for proving the charges relating to misconduct against the delinquent employee, such enquiry has to be held in consonance and conformity of principles of natural justice and fair play including Audi Alteram Partam Rule of natural justice and relevant statutory rules applicable for holding such enquiry and in conformity with the provisions of Article 311(2) of the Constitution in case of Govt. employee. Although the procedure to conduct the domestic enquiry as revealed from the provision of Rule 55 of 1930 Rules and Rule 7, 8 and 9 of 1999 Rules have some resemblance of criminal trial wherein the prosecution has to establish the guilt against the accused person. But the standard of proof of guilt in a domestic enquiry is distinct from criminal trial in several respects as indicated herein before. The disciplinary proceedings being quasi judicial administrative in nature cannot be equated with the regular civil or criminal proceedings before the regular court. The administrative authorities are required to hold enquiry regarding misconduct under relevant service rules for their administrative purpose. In such domestic enquiry they have to accept and to collect the materials and evidence not strictly in accordance with the rules of evidence as the strict standard of proof is not required in domestic enquiry for variety of reasons and limitations. What in essence they are required to do is that delinquent employee must be informed about the materials and evidence collected and to be relied upon against him so as to enable him to explain the situation. After holding such, inquiry if the Inquiry Officer is other than Disciplinary Authority is required to submit his inquiry report to the Disciplinary Authority either by holding the charges levelled against the delinquent employee proved against him or by exonerating the charged employee. Before taking any decision against the charged employee on the basis of such inquiry report the copy of inquiry report has to be supplied to the delinquent employee asking his comment thereon. After going through the inquiry report and reply of delinquent employee, the Disciplinary Authority has to pass final order either exonerating the delinquent employee from the charges levelled against him or holding him guilty of charges by awarding appropriate punishment. The Inquiry Officer /Disciplinary Authority can also hold inquiry ex-parte in the manner indicated herein before in situations envisaged therefor. The inquiry can also be dispensed with in situations envisaged by relevant service rules or under second proviso of Article 311(2) of the Constitution of India in either of any, three situations visualized thereunder. This is crux of the matter but not end of the matter.
45. Now next incidental question arises for consideration is what would be the effect of non-observance or violation of any statutory rules or any facet of natural justice in domestic enquiry? To find out appropriate answer to this question it would be useful to refer some decisions of Hon'ble Apex Court hereinafter. In State Bank of Patiala and Anr. v. S.K. Sharma (supra) where in paragraph 32 of the decision the Hon'ble Apex Court has summarized the legal position in this regard as under :-
"32. We may summarize the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary inquiries and orders of punishment imposed by an employer upon the employee):
(1) 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.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provision are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in hisx 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', '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 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 Inquiry 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. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee .
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to 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 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 approach adopted by the Constitution Bench in B.Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) 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 of the Tribunal 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, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing. " (a) In the case of 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) has to be examined from the stand-point of prejudice, in other words, what the Court or Tribunal has to see 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. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) 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.
(7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
46. The position has been further crystallised by Hon'ble Apex Court in M.C. Mehta v. Union of India and Ors. wherein Hon'ble Apex Court in para 21 of the decision has taken note of earlier decision rendered in S.L. Kapoor v. Jagmohan, and in para 22 of the decision it has been held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. In para 23 and 24 of the decision, what is known as useless formality theory has first time received consideration of Hon'ble Apex Court, but no final opinion was expressed thereon. For ready reference para 21 and 22 of the aforesaid decision are being quoted as under:
"21. It is true that in Ridge v. Balwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but we might point out that this Court has not laid down any absolute rule. This is clear from the judgment of Chinappa Reddy, J. in S.L. Kapoor v. Jagmohan, . After stating (P.395) (of SCC); ( at P. 147 of AIR) that principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed and that non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary.
"As we said earlier, where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. "
22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice."
47. However in subsequent decision rendered in Canara Bank and Ors. v. Shri Debasis Das and Ors. the Hon'ble Apex Court has held that where grant of opportunity in terms of principles of natural justice do not improve the situation, useless formality theory can be pressed into service. For ready reference the observation made by the Hon'ble Apex Court in paragraph 12 of the decision is reproduced as under:-
"12. Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service."
48. The aforesaid principle has been reiterated again in Canara Bank v. V.K. Awasthy, wherein in paragraph 18 of the judgment Hon'ble Apex Court has held as under :-
"18. As was observed by this Court we need not to go into 'useless formality theory' in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellant unless failure of justice is occasioned or that it would not be in public interest to do so in particular case, this Court may refuse to grant relief to the concerned employee (see Gadde Venkateswara Rao v. Govt. of A.P. and Ors.). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing."
49. Now having regard to the rival submissions of the learned counsel for the parties it is necessary to examine first question in context of the facts of the case. In support of his submission learned counsel for the petitioner has placed strong reliance upon the allegations made in para 18,19,29 and 32 of the writ petition wherein the petitioner has specifically stated that on receipt of the reply of the charge-sheet issued to the petitioner the Inquiry Officer did never call upon the petitioner to participate in the enquiry. No statement of any witnesses were ever recorded by the Inquiry Officer nor examined the same nor the petitioner has been asked to cross examine them. Virtually no formal enquiry has at all been held by the Inquiry Officer rather he has straightway proceeded to submit inquiry report to the Disciplinary Authority holding the petitioner guilty of the charge levelled against him. Thereupon the Disciplinary Authority issued show cause notice which was replied by the petitioner but without going in to the reply of the petitioner in correct perspective the Disciplinary Authority has held the petitioner; guilty of the charge levelled against him on the basis of aforesaid inquiry report and the impugned order awarding major penalties has been passed against him. Thus the whole exercise undertaken by the respondents is violative of provisions of Article 311(2) of the Constitution of India in as much as the relevant provisions of the Rules referred herein before and the order passed by the Disciplinary Authority is a nullity and void ab initio. Contrary to it in the paragraph 4 of the counter affidavit filed on behalf of the respondents, it has been inter-alia mentioned that a charge-sheet was served upon the petitioner on 13.6.98 in response to it the petitioner has submitted his written reply of the charge sheet vide letter dated 14.6.98, 23.7.98 and thereafter vide letter dated 18.11.98 and 18.12.98, the opportunity was given to the petitioner for cross examination of witnesses by the Inquiry Officer but the petitioner could not avail the aforesaid opportunity. After providing reasonable opportunity to the petitioner the Inquiry Officer has completed the inquiry and submitted his report to the State Government vide his letter dated 5.2.99 wherein the charge was found proved against him by the Inquiry Officer. After due consideration of the inquiry report a show cause notice was issued to the petitioner by the State Government vide letter dated 3.4.99. In response to which the petitioner has submitted his representation vide letter dated 16.4.99 and 20.10.99 and 27.11.99. After due consideration of the representation of the petitioner in the light of the inquiry report the charge was found proved against the petitioner. So the punishment order dated 5.4.2003 was passed after due consultation with the Public Service Commission. Virtually the same fact has been repeated in para 5 of the counter affidavit while making reply to the para 6 to 25 of the writ petition and in para 6 of the counter affidavit in reply to para 26 to 41 of the writ petition with some additional facts.
50. In this regard it is necessary to point out that this factual aspect of the matter stated in para 18 and 19 of the writ petition and further asserted in para 29, 31, and 32 of the writ petition in our opinion was required to be specifically replied by the answering respondents and some materials were also required to be produced by the respondents in support thereof particularly when the factum of holding formal inquiry was specifically denied by disputing the same in the manner aforestated. In case any notice after receipt of the reply of the charge sheet was issued by the Inquiry Officer to the petitioner calling upon him to participate in the inquiry or the witness mentioned in the charge-sheet to prove the charge levelled in the charge-sheet and thereupon the petitioner was called upon to cross examine them and produce his own evidence in defence if he so desires. In that connection it was necessary for the answering respondents to file copy of such notice if at all were issued to the petitioner and other witnesses mentioned in the charge-sheet in the inquiry proceedings controverting the aforesaid facts stated in the writ petition but instead of doing so in the aforesaid counter affidavit a bald assertion has been made denying the aforesaid facts stated in the writ petition with the averments that the petitioner was permitted to cross examine the witness and was intimated for such purpose vide letter dated 18.11.98 and dated 18.12.98 but he has not availed the aforesaid opportunity. In our considered opinion the factum of issue of such notice and service upon the petitioner and departmental witnesses in respect of inquiry could be proved by respondents by filing copy of such letters/notices along with counter affidavit but no such copy of alleged letter dated 18.11.98 and 18.12.98 along with any report of service upon the petitioner were filed by the respondents along with the counter affidavit. Besides this it is also no where stated in the inquiry report that such letters were written and served upon the petitioner and inspite of service, he did not participate in inquiry and cross examine the departmental witness so examined. There appears nothing from the record (inquiry report) that any departmental witness who were mentioned in the charge-sheet have ever been examined by the Inquiry Officer therefore unless the departmental witnesses mentioned in charge-sheet are examined to prove the charge before Inquiry Officer, the charges cannot be said to be proved as mere allegations in the charge-sheet cannot take the place of proof of charges levelled therein. In other words unless such departmental witnesses were examined by Inquiry Officer what was occasion for the petitioner to cross examine them. Besides, even inspite of service of such notice of inquiry if the petitioner was found failed to appear before Inquiry Officer and participate in inquiry proceeding, the only course which was opened to the Inquiry Officer to hold exparte inquiry by recording the statement of the departmental witnesses even in absence of the petitioner. But neither any such allegations have been made in the counter affidavit nor from the inquiry report also there appears any such indication that such departmental witnesses were examined before inquiry officer in absence of the petitioner to prove the charge against him, therefore, such bald statements in the pleadings of the counter affidavit in our considered opinion cannot take the place of proof of holding any formal inquiry by the Inquiry Officer justifying his inquiry report submitted to the Disciplinary Authority. Thus, we have no hesitation to hold that as a matter of fact the Inquiry Officer did not hold any formal inquiry before submitting the inquiry report to the Disciplinary Authority holding the petitioner guilty of the charges levelled against him rather as submitted by the learned counsel for the petitioner the Inquiry Officer straightway has prepared the inquiry report and submitted the same to the Disciplinary Authority without holding any formal disciplinary inquiry against the petitioner. Such exercise undertaken by the Inquiry Officer in our considered view appears to be farce exercise of holding inquiry and does not satisfy the test of requirement of either principles of natural justice embodied under the provisions of Article 311(2) of the Constitution of India or the relevant service Rule 55(1) of 1930 Rules and/or Rule 7 of 1999 Rules, therefore wholly erroneous and illegal and can . not be sustained. Accordingly whole inquiry after the stage of submission of reply of charge-sheet including the impugned order of punishment passed by Disciplinary Authority is vitiated under law and liable to be struck down by this Court.
51. The view taken by us also finds support from the observation made in para 32(iii)(iv) of the decision rendered by the Hon'ble Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma (supra) wherein the Hon'ble Apex Court has held that violation of any and every procedural provisions cannot be said to automatically vitiated the enquiry held or order passed except cases falling under no notice, no opportunity and no hearing categorized, and complained violation of procedural provision should be examined from point of view of prejudice viz., whether such violation has prejudiced the delinquent officer or employee in defending himself properly and effectively but the Court may not insist on proof of prejudice in such cases where there is violation of certain procedural provisions which are of a fundamental character whose violation is by itself proof of prejudice. In our considered view the procedure regarding holding of formal inquiry after receipt of reply of charge-sheet by Inquiry Officer or Disciplinary Authority was of fundamental in character. The inquiry was liable to be held in conformity with the procedure provided under relevant statutory Rules 55 of 1930 and/or Rule 7 of 1999 Rules referred earlier but it appears that the Inquiry Officer while submitting the inquiry report without holding any formal inquiry has completely violated the aforesaid Rules which are fundamental in character. Therefore proof of prejudice in such cases should not be insisted upon and is not required to be examined by this court. Proof of violation or non-observance of such rules itself is sufficient. It would also be a case of no opportunity and no hearing as distinguished from inadequate opportunity and hearing. Thus in view of the aforesaid discussions we have no hesitation to hold that whole inquiry conducted against the petitioner after the stage of submission of reply of charge sheet and consequent impugned order dated 5.4.2003 passed by State Government imposing major penalties upon the petitioner is farce exercise and vitiated under law and liable to be struck down by this court, hence hereby quashed.
52. The aforesaid view taken by us also finds support from three decisions rendered in Subhash Chandra Sharma v. Managing Director and Anr. (2000) 1 UPLBEC 541, Girja Shankar Pant v. State of U.P. and Ors. (1998 (3) E.S.C. 2226 (All) and in Rajendra Prasad Tripathi v. State of U.P. and Ors. 2004 (4) AWC 3536 (LB) wherein the order of punishment passed by the Disciplinary Authorities awarding major penalty in aforesaid cases on the basis of inquiry report submitted by the Inquiry Officers therein without holding any formal inquiry were quashed holding that such inquiry is vitiated under law. We are in full agreement with the view taken in the aforesaid decisions rendered by the three Division Benches of this Court referred above.
53. Now coming to the next question, according to the learned counsel for the petitioner that the charge-sheet contains solitary charge against the petitioner to the effect that at range in question the audit objection with regard to shortage of plants in Nurseries were raised causing financial loss to the government in the tune of Rs. 5,23,588.56 P. due to the fact that the petitioner has failed to keep the highest standard of integrity and devotion in due discharge of his duties without any other short of imputation that he was any way negligent in discharge of his duties resulting which the government has suffered such financial loss. In this regard learned counsel for the petitioner has urged that even if the charge levelled against the petitioner may be taken to be correct from its face value the same does not constitute any misconduct. More so warranting such a major penalties, which have been inflicted upon the petitioner. In order to substantiate the aforesaid submission, the learned counsel for the petitioner has placed reliance upon the averments contained in para 23, 26, 27 and 28 of the writ petition and copy of charge sheet contained in Annexure 3 of the writ petition. In support of his submission, the learned counsel for the petitioner has also relied upon a decision rendered by Hon'ble Apex Court in Union of India and Ors. v. J. Ahmed .
54. At this juncture it is necessary to examine the case law cited by learned counsel for the petitioner before dealing with his submission in context of facts of the case. In Union of India and Ors. v. J. Ahmed (supra), the question before the Hon'ble Apex Court was whether the charges levelled in the charge sheet against the respondent constitutes acts of misconduct or not and as to whether the retention of respondent in the service by orders of State Government referred above beyond the period of 6 months after the age of retirement was valid or not, if it was not valid whether he could be removed from service after he had actually and effectively retired from service? While taking note of earlier decision rendered by Hon'ble Apex Court and High court and scheme of statutes under consideration in para 11 of the decision, the Hon'ble Apex Court has held as under :-
"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster) (1886) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers)](1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt. Central Railway, Nagpur Divn. Nagpur, 61 Bom LR 1596 : and Satubha K. Vaghela v. Moosa Raza , (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: -
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. "
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, , in the absence of standing orders governing the employee's undertaking, unsatisfactory 'work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, , the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings, a single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this court in P.H. Kalyani v. Air France, Calcutta , wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through there are other more familiar (examples) instances of which (are) a railway cabinman signaling in a train on the same track where there is a stationary train causing headlong collision, a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd., (1978) 19 Guj LR 108 at p. 120). But n any case, failure to attaint he highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
55. Thus from a close analysis of observations made by the Hon'ble Apex Court in the aforesaid decision, it is clear that Hon'ble Apex Court has held that a conduct of Govt. Servant which is inconsistent to the rules set out in conduct rules is misconduct, but it is difficult to believe that lack of efficiency or attainment of highest standard in discharge of duty attached to public office or in other words failure to attain the highest standard of efficiency in performance of duty would ipso facto constitute misconduct. There may be negligence in performance of duty and lapse in performance of duty may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to the negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. While considering the allegations in the context of Rule 3 of All India Services Conduct Rules 1954 prescribing a code of conduct of members of All India Service, the Hon'ble Apex Court has held that "having regard to the facts and circumstances of the case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct for the purpose of Rule 3 of Conduct Rules as would indicate lack of devotion to duty.
56. Similarly the provisions contained in Uttar Pradesh Government Servants Conduct Rules, 1956, which are applicable to the petitioner, are almost similar to that of provisions contained in All India Services (Conduct) Rules, 1954. The Rule 3 of which is general in nature stipulates that every government servant shall at all the times maintain absolute integrity and devotion to duty and conduct himself in accordance with the specific or implied orders of government regulating behaviour and conduct which may be in force. Further provisions contained under Rule 3-A to 34 of Rules 1956 are specific rules and also analogous to the other rules contained in All India Services (Conduct) Rules, 1954, which prescribed a code of conduct for members of service. These rules are not exhaustive prescribing complete code of conduct of members of the service governed by the aforesaid rules. It is no doubt true that breach of aforesaid rule in conducts by a member of service would constitute the misconduct but the degree of culpability may vary and depend upon degree of grossness of misconduct. Thus it cannot be said that breach of Rule 3 of conduct Rules 1956, which is general in nature, would not constitute any misconduct. For ready reference Rule 3 of Rules, 1956 is quoted below:
"3. General.- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.
(2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. "
57. Thus from the aforesaid discussion it indicates that the crucial question arises for determination of this Court is as to whether any acts or omission is negligence in performance of discharge of duty or not and such negligence is directly attributable to the loss caused to the government or not? In this connection it is necessary to point out that from a bare perusal of charge sheet it is clear that act or omission attributed to the petitioner in the charge-sheet resulting loss or damage to the government is amounting to Rs. 5,23,588.56 P. and from the perusal of the inquiry report and impugned order passed by the Disciplinary Authority it appears that the aforesaid amount was reduced to sum of Rs. , 3,55,321/- holding the petitioner guilty of misconduct causing loss to the Govt. in tune of aforesaid amount mentioned in the impugned order. Although no specific mention has been made in the charge-sheet that such acts of the petitioner is negligence in due discharge of his duty constitutes misconduct of serious nature, but in our opinion loss or damage caused to the public and state fund is not a meager or negligible for the purpose of holding disciplinary inquiry against the petitioner or employees whosoever found responsible for the same which can be examined during the inquiry as to whether such shortage of plants in nurseries in range of petitioner can be attributable to the acts or omissions of the petitioner or some body else. If it is attributable to the acts or omission of the petitioner alone or along with some other officials of the department, the same can be examined in disciplinary inquiry which is yet to be held against the petitioner in consequence of the view taken by us herein before but no final opinion can be expressed in this regard at this stage on merits. Thus in our considered opinion mere omission to state the facts that such act or omission of the petitioner is the result of his negligence in discharge of duties and constitutes misconduct does not ipso facto renders charge-sheet invalid, unless it is shown that act complained of in the charge-sheet from its face value if taken to be correct the same does not constitute misconduct. But from a bare perusal of charge-sheet it reveals that the necessary allegations of shortage of plants on account of act or omission of petitioner causing huge financial loss to the government has been levelled against him, thus mere omission to state the fact that same was on account of negligence of petitioner in due discharge of duties which constitutes misconduct does not makes the charge-sheet faulty and invalid. In this connection it is also necessary to point out that a distinction has to be drawn between the omission of statement of necessary facts constituting the acts or omission amounting negligence which, is misconduct under relevant service rule and omission to state that aforesaid act or omission is negligence in due discharge of duties constituting misconduct. The former renders the charge-sheet invalid but latter would not. In our opinion the case in hand falls in latter category. Thus in view of aforesaid discussion it is difficult for us to hold that the charge-sheet issued to the petitioner is faulty and invalid and liable to be struck down by this court. However, it is made clear that the observation made herein are for limited purpose to examine the validity of the charge-sheet on the basis of charge levelled therein but not on the merits of the charge in as much as liability of the particular employee of the department.
58. In connection of third question referred earlier the learned counsel for the petitioner submitted that on the merits too the charges levelled against the petitioner cannot be sustained for the reasons that short fall of plants were due to annual mortality of the plants grown in nurseries on account of various factors and were within the permissible mortality limit as contained in various Circulars of the department issued from time to time in this regard in as much as even if any short fall still remains the other person who are inferior officers and subordinate to him could have been held responsible for loss or damages to the extent fixed under the aforesaid Circulars and at any rate no liability upon the petitioner alone could have been fastened. In this connection it is necessary to point out that the submissions of the learned counsel for the petitioner consist of two parts. In first part the contention is that short fall of plants in the nursery as alleged in the charge-sheet are within the prescribed permissible mortality limit and therefore the same cannot be termed as actual short fall for the purposes of computing any loss caused to the Government so as to warrant disciplinary action against the petitioner or any body else. In second part the further submission is that even assuming for the sake of argument that any short fall of plants still remains by substracting/deducting the permissible number of plants covered within the prescribed mortality limit the other inferior officers subordinate to the petitioner can be held responsible to the extent as prescribed by circulars of the department issued in this regard and the petitioner cannot be held at all responsible for the same. In support of his submission learned counsel for the petitioner has relied upon the assertions made in para 35 to 39 and 44,46,47 of the writ petition wherein a self prepared chart made by the petitioner has been given on the basis of which it is asserted that the deficiency/short fall of the plants comes to only 91,251/- which is within the admitted permissible damage limit of 5% which comes to 1,20,935/- even if taken to be correct the same would be lesser than admissible prescribed mortality limit. The assertions made in the aforesaid paragraphs of the writ petition have neither been specifically denied in the counter affidavit filed on behalf of the State Government nor it has been specifically dealt with in the inquiry report submitted by the Inquiry Officer though it was prepared without holding any formal inquiry. However, in para 6 of the counter affidavit in reply to paragraphs 26 to 41 of the writ petition only this much has been stated that a rebate of 5% mortality rate of plants as has already been given to the petitioner in the short fall of total number of plants mentioned in the charge-sheet as a consequence of which the loss caused to the Government which was on account of the acts or omission of the petitioner has been reduced from Rs. 5,23,588.56 P. to Rs. 3,55,321/-, but nothing has been said about the fact that computation made by the petitioner in self prepared chart is correct or not and based on any materials or not. Thus we are of the opinion that the aforesaid assertions of the petitioner particularly made in para 35 to 39, 44, 46 and 47 of the writ petition requires to be specifically dealt with by the Disciplinary Authority at the relevant time when the matter is examined next by the said authority.
59. So far as the second part of the submission of the learned counsel for the petitioner is concerned in this regard it is necessary to point out that as per circular dated 27.9.91 the subordinate staff is held responsible in proportion to the percentage of loss/damage in plants according to which Karya Prabhari (Forest Guards) of respective Nurseries are made solely responsible to the extent of 10% loss of plants. Where the short fall is found to be 30% then the Karya Prabhari together with Foresters (Section Officer) are equally made responsible for the said loss to the extent of 50+50%. Lastly where the loss in plants is found more than 30% then Karya Prabhari, Foresters and Forest Ranger of the Range are made responsible in equal proportion to the extent of loss. The aforesaid circular is filed as Annexure 13 of the writ petition. At the strength of aforesaid circular it is asserted in para 40 and 41 of the writ petition that in view of the own circular of the department specifically fixing accountability of inferior staff in proportion to the loss caused in plants in nursery the petitioner can by no stretch be held responsible for loss mentioned in the charge memo as loss in Janseth Range was admittedly less than 30%. These specific assertions made by the petitioner in para 40 and 41 of the writ petition has neither been specifically denied in the counter affidavit filed on behalf of the respondents nor the existence and contents of circular dated 27.9.91 issued from the office of Chief Conservator of Forest (Madhya Kshetra) Uttar Pradesh Lucknow has been denied and it is no where stated that the aforesaid circular is not operative in the department. Thus unless the existence and operation of aforesaid circular is denied and disputed the respondents have no escape to ignore the aforesaid circular and take different and any contrary view in the matter but at this stage we are not inclined to express any final and concluded opinion on the issue on merits except observations made above. However, when the matter is examined next the aforesaid aspect of the matter should also be dealt with specifically by Competent Authority.
60. Since we have taken a view that the inquiry proceedings after the stage of submission of the reply of the charge-sheet is liable to be struck down and accordingly the same has been quashed as a result the impugned order dated 5.4.2003 passed by the State Government inflicting major penalties upon the petitioner contained in Annexure 12 of the writ petition has also been quashed with the liberty to the respondents to hold afresh inquiry on the charges levelled against the petitioner in the charge sheet from that stage and pass appropriate order after holding such inquiry thereon but same should not be to understood to mean that any such direction has been given by us to necessarily hold such inquiry against the petitioner. Rather the Disciplinary Authority is required to consider and ascertain in view of the office order dated 27.9.91 contained in Annexure 13 of the writ petition as to whether inferior officers subordinate to the petitioner can be held responsible for the damage or loss caused to the plants in their respective nurseries which were within the range of the petitioner or the petitioner can also be held responsible along with them directly on account of his owns act or omissions constituting misconduct or being a superior officer he is vicariously liable for the negligence or misconduct of his subordinate officers? If the vicarious liability of his subordinate is extended to him a further question would arise as to why other superior officers above to petitioner cannot be held vicariously liable for the negligence and misconduct of his subordinate officers? In our considered opinion any vicarious liability of negligence or misconduct of subordinate staff cannot be fastened upon the superior officers unless superior officer can be directly held responsible for the same in his supervisory capacity by virtue of duties assigned to the post held by him. Before holding any fresh inquiry the competent authority/State Government is required to examine these aspect of the matter and come to a definite conclusion. Besides the competent authority is also required to examine that in the given facts and circumstances of the case including long lapse of time from the date of incident till the date as to whether any disciplinary inquiry is feasible against the inferior officers or employees subordinate to the petitioner or not? If the Disciplinary Authority comes to a prima facie conclusion that such inquiry is still necessary, it is open for them to hold a formal Disciplinary enquiry against other persons if desirable against the petitioner also in the manner indicated herein before. The decision in this regard shall be taken by State Government within a period of two months from the date of production of certified copy of this order before the Secretary to the Government. 61. Now next question arises for consideration that for which relief the petitioner is entitled? In this connection a reference can be made to the observations made by the Hon'ble Apex Court in Managing Director E.C.I.L. v. B. Karunakar and Ors. (supra) wherein the Hon'ble Apex Court at page 1092-93 of the report observed as under :-
"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 famishing 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 enquiry 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 he the correct position in law."
62. It is again necessary to mention here that since we have already quashed the disciplinary proceeding pending against the petitioner from the stage of submission of reply of the charge sheet including the final order of punishment awarded to him, therefore, as a consequence of which the petitioner shall be deemed to be reinstated in service on the post upon which he was working prior to date of impugned order dated 5.4.2003 passed against him. The reinstatement of the petitioner would be for a limited purpose for holding an enquiry if at all desirable in given facts and circumstances of the case as observed. Since in the instant case the petitioner was neither dismissed nor removed from the service as a result of impugned disciplinary proceeding held against him rather he was reverted from the post of Sub-Divisional Officer (Forest) to his original initial post of Forest Ranger and he is still continuing on the aforesaid post of Forest Ranger, therefore, if the Disciplinary Authority proposes to hold further fresh inquiry against the petitioner as indicated hereinbefore it is not necessary to place him under suspension unless it is warranted having regard to the facts and circumstances of the case. In case the petitioner is not required to be placed under suspension it is needless to say that he will be permitted to continue on the post of Sub-Divisional Officer (Forest) and also be entitled for the salary on the aforesaid post during the pendency of such fresh disciplinary inquiry to be held against him. In such fresh disciplinary inquiry if the petitioner succeeds and is reinstated the authority shall be at liberty to decide according to law how it will treat the period from the date of reversion till the date of reinstatement and what benefit if any and extent of benefit he will be entitled.
63. The petitioner is directed to produce a certified copy of the order passed by this Court before the Principal Secretary (Forest) Govt. of U.P. Lucknow along a copy of writ petition with enclosures appended thereto within a period of 15 days from today, the respondent No. 1 is directed to pass appropriate and reasoned order within a further period of 2 months from the date of production of a certified copy of the order passed by this Court before it. In case the authority comes to the conclusion that any fresh disciplinary inquiry is still required to be held against the petitioner such fresh inquiry shall be completed within a further period of 3 months in which the petitioner shall also cooperate.
64. In the light of the observations and direction made hereinbefore the writ petition succeeds to the extent indicated herein before hence allowed to that extent. There shall be no order as to costs.