Calcutta High Court (Appellete Side)
Smt. Aloka Bhattacharjee vs North Bengal State on 10 November, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
W.P. No. 10791 (W) of 2016
Smt. Aloka Bhattacharjee
v.
North Bengal State
Transport Corporation & ors.
For the petitioner : Ms. Aiswarjya Gupta, Advocate,
Mr. Chittapriya Ghosh, Advocate,
Ms. Priti Banerjee, Advocate.
For the respondents : Mr. Amal Kumar Sen, Advocate,
Mr. Lal Mohan Basu, Advocate.
Hearing concluded on : August 22, 2016 Judgment on : November 10, 2016
1. The petitioner in this petition under Article 226 of the Constitution is the widow of Dipak Bhattacharjee (hereafter Dipak), who passed away on May 21, 2010. An appellate order dated February 24, 2016 passed by the Managing Director of the North Bengal State Transport Corporation (hereafter the NBSTC) is subjected by the petitioner to challenge herein, whereby a departmental appeal preferred by Dipak against a post-retirement final order of punishment was disposed of with an insignificant modification of the order impugned.
2. During his lifetime, Dipak was an employee of the NBSTC. He had retired on attaining the age of superannuation on August 31, 2006. A few days prior to his retirement, July 6, 2006 to be precise, Dipak was suspended in connection with disciplinary proceedings that had been drawn up against him. The charges related to financial irregularities committed by Dipak while functioning as Assistant Divisional Cashier, Mainaguri depot. An enquiry followed, conducted by the Personnel Officer, NBSTC : Siliguri Division (hereafter the enquiry officer). Two of the three charges levelled against Dipak were held to be established by the enquiry officer in his report dated September 21, 2007. Accepting such report, the Divisional Manager, NBSTC : Siliguri Division who was the disciplinary authority of Dipak passed a final order of punishment dated October 4, 2007, the operative part whereof reads as follows:
"He deserves severe punishment for his misdeed and I pass the following orders:-
1. Since Shri Dipak Bhattacharjee had retired from the service on 31.08.2006, so an amount of Rs.2,03,821.00 + Rs.30,573.00 (interest @ Rs. 15% of Rs.2,03,821.00) = Rs.2,34,394.00 (Rupees two lacs thirty four thousand three hundred ninety four) is to be deducted from his Retirement Benefits payable in favour of Shri Dipak Bhattacharjee.
2. The period of suspension will be treated as on punishment during the period of suspension he will not get anything other than subsistence allowance."
3. During the continuance of the disciplinary proceedings, Dipak had presented a writ petition before this Court [W.P. 19890(W) of 2007], complaining of non-grant of adequate and reasonable opportunity to defend himself. The said writ petition was listed for consideration before this Bench on February 2, 2009. None appeared for the respondents. It was represented on behalf of Dipak that during the pendency of the writ petition, the disciplinary authority had passed the final order on the basis of findings of guilt recorded in the disciplinary proceedings initiated against him. Learned advocate for Dipak prayed for liberty to prefer an appeal against the final order and for a direction to consider such appeal waiving limitation, if any. There being none to oppose the prayer, the same was granted.
The writ petition was dismissed as withdrawn, with liberty to Dipak to prefer an appeal against the final order of penalty within fifteen days from date. It was also observed that in the event Dipak filed an appeal within fifteen days from date, the same would require consideration on merits by the appellate authority waiving limitation, if any, upon hearing Dipak. The appeal was required to be disposed of within four weeks from date of receipt thereof and in the event the appeal was rejected, the order should have the support of reasons.
4. Availing the liberty that was granted by the said order and within the period stipulated therein, Dipak preferred an appeal before the Managing Director of the NBSTC (hereafter the appellate authority) on February 12, 2009. He sought to impress the appellate authority how he was denied adequate and reasonable opportunity to defend himself in the enquiry (the relevant documents on which the prosecution sought to rely on were not furnished, permission to be defended by a defence assistant of his choice was not granted, and without his representations being disposed of, the enquiry was conducted and concluded ex- parte). He also complained of non-service of the report of the enquiry officer prior to punishment being imposed on him.
5. Despite the appellate authority being required by the order dated February 2, 2009 to dispose of the appeal within four weeks from date of receipt of the appeal by passing a reasoned order, no step in that behalf was taken at least till January 7, 2013 when Dipak was sought to be informed by the appellate authority that he had fixed January 25, 2013 as the date for personal hearing. The hearing date was thereafter deferred to February 7, 2013, which the appellate authority sought to communicate to Dipak by his letter dated January 24, 2013. Dipak having breathed his last during the pendency of the appeal, he could not have been physically present for personal hearing. The petitioner informed the appellate authority accordingly by her letter dated January 28, 2013. In such letter, she regretted her inability to attend personal hearing on February 7, 2013 since she had lost her mother on the same date, and prayed for fixing a date of hearing after February 15, 2013.
6. Receiving no response from the appellate authority and waiting in excess of a year, the petitioner entered the portals of this Court with a writ petition [W.P. 23568(W) of 2014] seeking direction on the respondents to allow her pursue the appeal preferred by Dipak. The said writ petition was disposed of on February 20, 2015 by a coordinate Bench with direction for completion of formalities within four weeks from date for allowing the petitioner and her son to pursue the appeal as substituted appellants and further direction on the appellate authority to dispose of the appeal in accordance with law within a further period of four weeks therefrom after affording the petitioner an opportunity of hearing, if felt necessary.
7. It is pursuant to the order dated February 20, 2015 that the impugned appellate order saw the light of the day more than a year later on February 24, 2016.
8. The writ petition has since been finally heard on exchange of affidavits by the parties.
9. Perusal of the second paragraph of the impugned appellate order reveals a finding recorded by the appellate authority that the "appeal petition is barred by limitation". The mindset of the appellate authority while deciding the appeal can well be comprehended on reading such finding. This Bench by its order dated February 2, 2009, while disposing of W.P. 19890(W) of 2007, granted two weeks' time to Dipak to prefer an appeal and it was observed that an appeal on being so filed shall be considered waiving limitation. Dipak filed an appeal on February 12, 2009, i.e. within ten days of such order. It is shocking that an officer holding as high an office as the Managing Director of a State Transport Corporation could be so careless while deciding an appellate proceeding.
10. That the appellate authority was bent upon declining relief to the petitioner is discernible on perusal of the further contents of his order. After magnanimity is sought to be shown by proceeding to consider the appeal in the interest of justice, the appellate authority in the third paragraph recites what the petitioner confirmed at the hearing (mainly that she is unaware of the contents of the appeal petition as well as the disciplinary proceedings, and not in possession of any evidence to disprove the allegation levelled against Dipak). The appellate order concludes by recording as follows:
"I have carefully gone through the entire case records and it appears that the Disciplinary Authority has rightly disposed of the instant Departmental Proceedings, affording all sorts of reasonable opportunities to the deceased appellant to defend his case. Moreover, the quantum of punishments is also proportionate with the involvement of misconduct excepting the rate of interest i.e. 15% as awarded by the Disciplinary Authority, otherwise there is no scope to interfere into the Order Dated - 04.10.2007 passed by the Disciplinary Authority & the Divisional Manager, NBSTC, Siliguri Division. Hence, the appeal petition Dated - 12.02.2009 substituted by Smt. Aloka Bhattacharjee, widow and Sri Arnab Bhattacharjee son of the deceased appellant is disposed of in the following manner -
The rate of interest is modified @ 10% instead of 15%. All other contents will remain unchanged."
11. The petitioner may have been unable to throw light on the contentions raised in the appeal petition of Dipak, nevertheless, that did not absolve the appellate authority from looking into the appeal petition and dealing with whatever legal contention Dipak had raised. Apart from the usual verbosity of carefully going through the entire case records, substantial points raised in the appeal by Dipak were not dealt with at all by the appellate authority. Leaving aside for the moment Dipak's allegation that he was denied adequate and reasonable opportunity to defend himself, which is a question of fact, the appellate authority did not consider it necessary to deal with Ground No. XIV of the appeal. Dipak had urged that "no copy of the report or findings of the E.O. has been supplied to me in gross violation of procedural and natural justice". If at all copy of the enquiry officer's report dated September 21, 2007 (part of the counter affidavit of the respondents) been furnished to Dipak and his comments thereon called for, the same could have been proved by referring to the relevant records. Unfortunately, the impugned appellate order is silent on this aspect.
12. Mr. Sen, learned advocate for the respondents, referring to paragraph 6(v) of the counter affidavit and Annexure-R5 thereto, submitted that the necessary pleading and proof of service of copy of the report of the enquiry officer on Dipak is available and the contention raised in the appeal that it was not furnished is without merit.
13. The first and the last sentences of paragraph 6(v) of the counter affidavit read:
"That the copy of said Inquiry Report was duly forwarded to said Dipak Bhattacharjee, deceased by a forwarding memo No.686/NBSTC dated 28.09.2006. ..........
Photostat copy of said Memo No.686/NBSTC dated 28.09.2006 alongwith copy of acknowledgement card and Photostat copy of said letter dated 11.10.2006 are annexed hereto and marked with 'R-5'."
This Bench is left appalled, to say the least. Not only is the appellate authority guilty of abdication of duty to consider the appeal according to law, as directed by the order dated February 20, 2015 passed in W.P. 23568(W) of 2014, the deponent of the counter affidavit (Traffic Officer & Officer-in-Charge of the Kolkata office of the NBSTC) is equally remiss. In fact, an incorrect statement has been made by such deponent on oath. Mr. Sen was visibly embarrassed being unable to answer as to how copy of the report of enquiry dated September 21, 2007 could be furnished to Dipak by a memo dated September 28, 2006. The said memo speaks for itself. Two reports dated June 21, 2006 and August 14, 2006, based whereon disciplinary proceedings had been initiated against Dipak, were sought to be furnished to him thereby after issuance of the charge-sheet and not the report of enquiry dated September 21, 2007.
14. It is, therefore, luminous as day that the report of enquiry dated September 21, 2007 was never furnished to Dipak, although the disciplinary authority did consider and accept the same while imposing punishment on Dipak.
15. To overcome non-observance of the law that requires an employer ~ be it private or public ~ to furnish copy of the enquiry report to a delinquent employee and seek his comments thereon, Mr. Sen raised the bogey argument that Dipak did not indicate the prejudice that he suffered owing to such non-observance in the appeal petition and the petitioner too, having failed to demonstrate prejudice in the writ petition, interference is not called for.
16. What would be the effect of non-service of the report of enquiry by the disciplinary authority to Dipak before he was punished? This question must necessarily be answered by taking a close look at the decision of the Supreme Court reported in (1993) 4 SCC 727 (Managing Director, ECIL v. B. Karunakar), and some other subsequent decisions where it has been considered, viz. (1994) 4 SCC 422 (Krishan Lal v. State of Jammu & Kashmir); (1996) 6 SCC 415 (S.K. Singh v. Central Bank of India); (2001) 6 SCC 392 (State of Uttar Pradesh v. Harendra Arora); (2008) 9 SCC 31 (Haryana Financial Corporation v. Kailash Chandra Ahuja); (2009) 13 SCC 102 (Union of India v. Bishamber Das Dogra); (2010) 3 SCC 556 (Sarva U.P. Gramin Bank v. Manoj Kumar Sinha); (2010) 13 SCC 494 (Punjab National Bank v. K.K. Verma); and (2014) 9 SCC 105 [Gorkha Security Services v. Govt. (NCT of Delhi)].
17. Owing to a perceived conflict of opinion in the decisions reported in (1988) 3 SCC 600 (Kailash Chander Asthana v. State of U.P.) [where it was held that non- service of a copy of the report of enquiry, the enquiry having been held in that case by an Administrative Tribunal under the relevant disciplinary rules, was immaterial] and (1991) 1 SCC 588 (Union of India v. Mohd. Ramzan Khan) [where it was held that the delinquent employee is entitled to a copy of the enquiry report before the disciplinary authority takes its decision on the charges levelled against him], both rendered by Benches of three learned judges, several matters were referred by another Bench of co-equal strength to the Constitution Bench for decision by an order dated August 5, 1991 reported in (1992) 1 SCC 709 (Managing Director, ECIL v. B. Karunakar). It is worth mentioning that Mohd. Ramzan Khan (supra) ushered in a new phase in the law relating to disciplinary action by acknowledging that consideration of the report of enquiry by the disciplinary authority without furnishing copy thereof to the delinquent employee constitutes violation of natural justice.
18. The majority decision of the Constitution Bench in B. Karunakar (supra) was authored by Hon'ble P.B. Sawant, J. (as His Lordship then was). Paragraph 2 of the decision contains recital of the basic question that arose for decision, which in turn gave rise to certain incidental questions. The basic question and the incidental questions, from paragraph 2 of the decision, are quoted below:
"2. The basic question of law which arises in these matters is whether the report of the enquiry officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. This question in turn gives rise to the following incidental questions:
(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?
(ii) Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?
(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?
(iv) Whether the law laid down in Mohd. Ramzan Khan case will apply to all establishments -- Government and non-Government, public and private sector undertakings?
(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?
(vi) From what date the law requiring furnishing of the report, should come into operation?
(vii) Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990?"
19. The decision in Kailash Chander Asthana (supra) was considered in paragraph 17 of the decision. The Court then recorded in paragraph 18 that it read nothing in such decision which took a view contrary to that expressed in the decision reported in (1988) 2 SCC 196 (Union of India v. E. Bashyan) by a Bench of two learned Judges or to the view taken in Mohd. Ramzan Khan (supra) by three learned Judges.
20. This statement is sufficient to clear the doubt of there being any conflict of opinion expressed in the decisions in Kailash Chander Asthana (supra) and Mohd. Ramzan Khan (supra). The Court, in normal circumstances, may not have proceeded further but found reason to do so in view of what was recorded in paragraph 19. Such paragraph reads:
"19. In Mohd. Ramzan Khan case the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty-second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non- furnishing of the report amounts to a violation of the rules of natural justice. However, after taking this view, the Court directed that the law laid down there shall have prospective application and the punishment which is already imposed shall not be open to challenge on that ground. Unfortunately, the Court by mistake allowed all the appeals which were before it and thus set aside the disciplinary action in every case, by failing to notice that the actions in those cases were prior to the said decision. This anomaly was noticed at a later stage but before the final order could be reviewed and rectified, the present reference was already made, as stated above, by a Bench of three learned Judges. The anomaly has thus lent another dimension to the question to be resolved in the present case."
(underlining for emphasis)
21. Hon'ble K. Ramaswamy, J. (as His Lordship then was) although agreed with the enunciation of law by Hon'ble Sawant, J., difference of opinion was expressed on one aspect. Hon'ble Ramaswamy, J. did not feel that any error was committed by the Bench while deciding Mohd. Ramzan Khan (supra) in granting relief to the employees before it, despite the observation that the law relating to furnishing of the report of enquiry would operate prospectively. The majority, however, agreed with Hon'ble Sawant, J. that there was indeed an error/anomaly. Pertinently, Hon'ble Sawant and Hon'ble Ramaswamy, JJ. were both members of the three Judge Bench that decided Mohd. Ramzan Khan (supra).
22. It admits of no doubt that the Supreme Court was conscious of the matters pending for decision before it in appeal where, following Mohd. Ramzan Khan (supra), disciplinary actions had been set aside by various Benches of the high courts by resorting to short-cuts merely on the ground of non-service of enquiry reports. This was despite the ruling in Mohd. Ramzan Khan (supra) that the law, requiring furnishing of enquiry report before the final order is passed punishing the delinquent employee, would operate prospectively. It appears, as of necessity, the Court was required to declare the law also for proper decisions on those pending matters where disciplinary action had been taken prior to the decision in Mohd. Ramzan Khan (supra). It cannot be gainsaid that the mistake/anomaly referred to in the concluding portion of paragraph 19 of the decision extracted supra, gave rise to some of the incidental questions [questions (v), (vi) and (vii)] for decision.
23. Turning to the conclusions recorded, it appears that the answer to the basic question is in paragraph 29 of the decision (the majority view) reading as follows:
"29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry 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 enquiry 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."
24. Hon'ble Ramaswamy, J. observed, in relation to the basic question, as under:
"61. It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well- settled law that the principles of natural justice are integral part of Article
14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both."
25. The incidental questions were answered in paragraph 30. The Court held, while answering question (i), that even if the statutory rules laying down the procedure for holding disciplinary inquiry do not permit the furnishing of the report or are silent on the subject, the delinquent employee would still be entitled to a copy of the report since the denial of the report of enquiry is a denial of reasonable opportunity and a breach of the principles of natural justice; and statutory rules, if any, which deny the report to the delinquent employee are against the principles of natural justice and, therefore, invalid. The answer to question (ii) was that, whenever the service rules contemplate an inquiry before a punishment is awarded and when the officer assigned with the duty of conducting enquiry is not the disciplinary authority, the delinquent employee will have the right to receive the report of enquiry notwithstanding the nature of the punishment. Question (iii) was answered by holding that whether or not the delinquent employee asks for the report, it has to be furnished to him since it is his right to have the report to defend himself effectively and it would not be proper to construe his failure to ask for the report, as a waiver of his right. In respect of question (iv), it was held that the law laid down in Mohd. Ramzan Khan (supra) should apply to employees in all establishments whether Government or non- Government, public or private.
26. The answer to question (v), which in the humble opinion of this Bench has quite often been misread and misunderstood, reads:
[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back- wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice.
The Court further proceeded to hold that:
"31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."
27. Questions (vi) and (vii) were considered together. Question (vi) was answered by holding that November 20, 1990, i.e. the date on which the Court rendered the decision in Mohd. Ramzan Khan (supra), would be the effective date from which the law requiring furnishing of the report should come into operation. Insofar as question (vii) is concerned, it was held that it was for the first time in Mohd. Ramzan Khan (supra) that the question (requirement to furnish copy of the enquiry report to the delinquent employee) squarely fell for decision of the Court. Till November 20, 1990, i.e. the day on which Mohd. Ramzan Khan (supra) was decided, the position of law on the subject was not settled by the Court. Mohd. Ramzan Khan (supra) for the first time laid down the law that copy of the enquiry report must be made available. The decision itself made the law laid down therein prospective in operation i.e. applicable to the orders of punishment passed after November 20, 1990. The law laid down was not applicable to the orders of punishment passed before that date, notwithstanding the fact that the proceedings arising out of the same were pending in Courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date, which did not require the disciplinary authority to furnish copy of the enquiry report to the delinquent employee.
Ultimately, in paragraph 44, it was observed as follows:
"44. The need to make the law laid down in Mohd. Ramzan Khan case prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the enquiry officer to the delinquent employee and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan case without furnishing the report of the enquiry officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence we hold as above."
28. A threadbare analysis of the said decision would reveal the Court's anxiety to ensure that the delinquent employee's right to defend himself effectively at an enquiry conducted by an officer appointed by the disciplinary authority, and not conducted by such authority himself, is not defeated. Upon detailed survey of the law on the point as well as due consideration of the provisions of Article 311 of the Constitution, as it originally stood, and after the Constitution (42nd Amendment) Act, 1976 became operative from January 1, 1977, the Court succinctly stated the reason for its answer to question (i) i.e. the basic question, in paragraph 26 of the decision reading as under:
"26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
(underlining for emphasis)
29. Right to receive copy of the report of enquiry by the delinquent employee, where charge(s) is/are held to be proved, thus was recognised by the Constitution Bench to be a valuable right of such employee, irrespective of who his employer is (public or private), and regardless of the position of the rules governing enquiry. Not only that, the requirement to furnish the report of enquiry by the employer, notwithstanding the employee not having asked for it, was also recognised since it was considered to be the right of the employee to receive it as part of reasonable opportunity.
30. The law laid down as above is binding not only on the high courts under Article 141 of the Constitution, but equally binding on the Supreme Court itself.
31. It may be noted that after the Constitution Bench directed the matters to be placed before the appropriate Benches, the lead matter of B. Karunakar (supra) was listed before a Division Bench of two learned Judges. While allowing the civil appeal, this is what the Division Bench in its decision reported in 1994 Supp (2) SCC 391 [Managing Director, ECIL v. B. Karunakar (II)], held :
"It has been held by the Constitution Bench that the principles of natural justice do require that a copy of the enquiry report is supplied to the charged officer though it is not necessary to give him a notice indicating the proposed penalty. But, it has been held, this requirement will be held obligatory only from the date of the judgment in Ramzan Khan case, viz., 20-11-1990. In this case, it may be noted, the order of dismissal of the respondent is far earlier to the said date. In the circumstances, the dismissal order cannot be said to be vitiated by non-furnishing of the Enquiry Officer's report."
32. It is in the perspective of the aforesaid authoritative rulings that the decisions in Krishan Lal (supra), S. K. Singh (supra), Harendra Arora (supra), Kailash Chandra Ahuja (supra), Bishamber Das Dogra (supra) and Manoj Kumar Sinha (supra) are required to be considered.
33. In Krishan Lal (supra), Harendra Arora (supra) and Bishamber Das Dogra (supra), the orders of dismissal/removal were passed prior to November 20, 1990. The date of the punishment order is not available in S. K. Singh (supra), whereas in the other two i.e. Kailash Chandra Ahuja (supra) and Manoj Kumar Sinha (supra), the orders of punishment are post November 20, 1990. The common thread that runs through all, however, is that copies of the enquiry reports were not furnished to any of the delinquent employees.
34. Reading the decisions in Krishan Lal (supra), Harendra Arora (supra) and Bishamber Das Dogra (supra), it is perceptible that the relevant Benches were inclined to and in fact followed the "substantial compliance"/"prejudice" principle(s) to rule against the employees who succeeded in their respective challenges laid before the high courts. In Krishan Lal (supra), whether an individual may renounce a law made for his special benefit was the keynote thought which pervaded in the cases before the Court. This decision is an authority for the proposition that a statutory right, conceived in the interest of an individual, may be waived by him. The Court held in Harendra Arora (supra) that service of copy of the enquiry report required by the relevant rules governing domestic enquiry though mandatory, was nevertheless a procedural step and every infraction of procedure not being fatal and notwithstanding the rules not having been adhered to strictly, the order of removal was impregnable particularly in the absence of any objection having been taken by the employee in course of the proceedings that he was prejudiced by reason of non-service of the enquiry report. Insofar as Bishamber Das Dogra (supra) is concerned, the Court found the aggrieved employee to be guilty of habitual absenteeism which was viewed to be a gross violation of discipline and it was held that the high court ought not to have interfered with the punishment order on mere technicalities.
35. The orders of punishment in the aforesaid three decisions having been passed prior to the Constitution Bench decision in B. Karunakar (supra) settling an unsettled legal position, may have called for a different treatment; hence, the same may not aid resolution of a dispute of the nature raised herein.
36. In S.K. Singh (supra), neither is the date of the order of removal available in the decision, nor the position with regard to the rules/regulations governing the domestic enquiry. In any event, it would appear that interference was declined on the facts.
37. In Kailash Chandra Ahuja (supra), a Division Bench of two learned Judges upon consideration of the ratio decidendi laid down by the Constitution Bench in B. Karunakar (supra) upset the decision under appeal. The high court had granted relief to the employee observing that the report of enquiry not having been supplied, prejudice was "writ large". The Supreme Court, however, was of the opinion that the employee was required to demonstrate the prejudice that he suffered due to non-service of the enquiry report but no prejudice was shown. The Court was also of the opinion that the high court was wrong in making such observation i.e. prejudice was "writ large" and in so observing, ignored the ratio laid down in B. Karunakar (supra).
38. In Manoj Kumar Sinha (supra) too, the high court had allowed the writ petition of the employee only on the ground of non-service of copy of the enquiry report holding that such action was in violation of the principles of natural justice. The factual narration reveals that after the disciplinary authority received the enquiry reports, he examined the same together with all the relevant documents forming part of the enquiries. Agreeing with the findings in the enquiry reports, the disciplinary authority issued two show-cause notices to the delinquent employee proposing the punishment of reduction of pay by six stages permanently. Thereafter, the delinquent employee was given an opportunity for a personal hearing by the disciplinary authority on each of the enquiry reports. Taking into consideration the explanation given by the delinquent employee, the disciplinary authority passed two orders on April 3, 2001 imposing the punishment of "reduction of pay by six stages permanently" and "reduction of pay by four stages" in relation to the charge-sheets dated November 9, 2000 and March 8, 2001 respectively. The appeals filed by the delinquent employee against the aforesaid orders of punishment were dismissed by the Board of Directors of the Bank in its meeting dated September 4, 2002. The decision of the Board was communicated to the delinquent employee vide letter dated September 9, 2002. At the time of hearing before the disciplinary authority, the delinquent employee did not raise any grievance that he was handicapped by reason of non-service of the enquiry reports and raised it for the first time before the Board, i.e. the appellate authority. The decisions in B. Karunakar (supra) and Kailash Chandra Ahuja (supra) were followed and the Supreme Court set aside the impugned decision of the high court.
39. The decisions in Kailash Chandra Ahuja (supra) and Manoj Kumar Sinha (supra) dealt with punishment orders passed in April, 2002 and April/September, 2002 respectively, that is much after the decision of the Constitution Bench in B. Karunakar (supra) laying down the law that copy of the enquiry report has to be furnished irrespective of whether the delinquent employee seeks it or not. Reading of such decisions at least does not suggest any query having been posed to the employer/disciplinary authority as to why the reports of enquiry were not furnished to the delinquent employees in line with the judicial mandate of the Supreme Court. Bearing in mind the law laid down by the Constitution Bench in B. Karunakar (supra) (to be effective from November 20, 1990) that denial of the report of enquiry is itself in breach of principles of natural justice, regardless of whether the delinquent employee has asked for it or not, it seems that such query could have been relevant in the circumstances. Be that as it may, the relevant Benches proceeded to upset the impugned orders of the high courts by a process of reasoning, obviously based on a reading of the Constitution Bench decision in B. Karunakar (supra), that to succeed on the ground of violation of natural justice arising out of non-service of the enquiry report, prejudice had to be pleaded and proved. The position of the rules/regulations governing domestic enquiry conducted against the respective employee as to whether it ordained furnishing of the report of enquiry was not discussed. This Bench is inclined to hold that the said decisions may only be relevant where the rules/regulations governing the domestic enquiry are silent on the aspect of furnishing of enquiry report and the order of punishment is attacked by the aggrieved employee not on the ground of breach of rules/regulations having statutory force, but on the ground of breach of natural justice.
40. The decision in K.K. Verma (supra) is the next decision in line, where the report of enquiry did not record finding of guilt but the disciplinary authority proceeded to impose punishment. The Court was of the clear opinion that the employer had not followed its own regulations, which clearly required the disciplinary authority to record the reasons where it differed from the enquiry officer and that a copy of the enquiry report and the order of disagreement are to be provided to the employee. Upon consideration of the previous decisions, it was held that non- service of the enquiry report and the adverse order of the disciplinary authority certainly prejudiced the delinquent employee. The relevant observations read thus:
"34. It was then submitted that non-supply of enquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Karunakar, S.K. Singh v. Central Bank of India and Haryana Financial Corpn. v. Kailash Chandra Ahuja were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case, however, we are concerned with a situation where the finding of the enquiry officer on a charge has been reversed by the disciplinary authority, which was not the case in any of the three cases. Besides, by not giving the enquiry report and the adverse order of the disciplinary authority, the respondent was denied the opportunity to represent before the finding of guilt was arrived at and thereby he was certainly prejudiced.
35. Thus, there is no error on the part of the learned Single Judge in interfering with the order of removal of the respondent from the service. The Court was ultimately dealing with the removal of an employee from his service which is a very serious matter. The Regulations are, therefore, required to be followed in letter as well as in spirit. The learned Single Judge was, therefore, right in directing the appellant to furnish the respondent a copy of the enquiry report, and afford him opportunity of hearing. The learned Division Bench was equally right in leaving the order of the learned Single Judge undisturbed. In our view, there is no reason to take a different view from the one taken by the learned Judges of the High Court."
41. Before concluding the discussion on the topic, reference may also be made to one other decision of the Supreme Court i.e. its decision in Gorkha Security Services (supra). Of course, the decision did not arise out of disciplinary proceedings. Upon considering the decision in Kailash Chandra Ahuja (supra), the Court held that the same does not apply to the facts of the case before it.
42. It would appear from the foregoing discussion that some the Benches of the Supreme Court upheld the respective employers' action of not furnishing the enquiry reports despite such action being in clear breach of the law laid down by the Constitution Bench in B. Karunakar (supra) while answering question (i).
43. The question that naturally arises in the mind of this Bench is, whether the law laid down to answer incidental questions would have the effect of superseding or abrogating the law laid down while answering the basic question arising for decision before the Constitution Bench. As has been noted above, questions (v),
(vi) and (vii) arose because of the error/anomaly that was subsequently noticed in the ultimate direction in Mohd. Ramzan Khan (supra). According to the understanding of this Bench, the law laid down while answering such questions [(v), (vi) and (vii)] were intended to have limited application i.e. govern the matters where challenges laid to orders of punishment (without furnishing copies of enquiry reports) passed both prior to and post November 20, 1990 were already pending before the Supreme Court or before the high courts as on date the Constitution Bench rendered its decision; and that the law laid down while answering question (i), to apply prospectively, were to govern all future cases where disciplinary action is sought to be taken on the basis of a report of enquiry and making it imperative for the employer to furnish such report to the delinquent employee. Any other interpretation of the Constitution Bench decision may have the potential of producing not only anomalous but disastrous results, discussed hereafter.
44. The Constitution Bench in B. Karunakar (supra) has without any ambiguity laid down that non-service of the enquiry report disables the delinquent employee to show to the disciplinary authority the perversity in such report by filing his reply, and if opportunity to represent against the report were granted, he could persuade the disciplinary authority to hold that he is innocent and does not deserve any punishment. Granting of opportunity to the delinquent employee to represent against the report of enquiry is a significant procedural step that must precede any disciplinary action, which is sought to be taken on the basis of the report of enquiry. If such procedural step is not observed and punishment is imposed without furnishing copy of the report of enquiry, to the mind of this Bench, it would indeed become difficult for the delinquent employee to present an appropriate appeal to the appellate authority, or where no appellate provision is available, to present an appropriate challenge before a court/tribunal impugning the decision of the disciplinary authority, not being aware of the materials the report of enquiry contains against him. That apart, think of a situation where the management seeks to get rid of an inconvenient employee and succeeds in its pursuit by dismissing him on the charge of misconduct following a sham enquiry without, however, furnishing him copy of the report of enquiry. The dismissed employee, if he has to approach the industrial tribunal or a court of law for redress, must do so without having the benefit of looking into the report of enquiry. At the most, he can raise a plea that non-service of the report of enquiry has vitiated the proceeding without, however, being in a position to demonstrate prejudice (without reading the enquiry report, how can he be expected to do that?). It is only after the pleadings are complete (and assuming that the enquiry report is part of the counter of the employer) that the employee for the first time has the opportunity of demonstrating the prejudice that he may have suffered due to non-service of the report. Having regard to the time that is spent in a court/tribunal before the challenge ripens for final hearing, one may well comprehend the agony and pain through which the employee has to pass, more particularly without being in employment. Money required for prosecuting the challenge may not be readily available, either resulting in abandonment of the challenge or failing to press the challenge with the same level of vigour and interest when it was initially laid. As in the present case, the employee may not be alive to demonstrate prejudice before the court/tribunal. If it is the law that one would not succeed in getting the penalty set aside unless prejudice is shown, much of what has been said by the Constitution Bench in B. Karunakar (supra) has to be read as obiter dictum.
45. It is quire unheard of that the law laid down by a Constitution Bench of the Supreme Court may be allowed to be breached with impunity by employers, even bordering on contempt, yet permitting them to raise the point of "no prejudice"
having been suffered by the delinquent employee at the time the matter reaches a court/tribunal. If indeed the answer given by the Constitution Bench to question
(v) is the law on the effect of non-service of the enquiry report, this Bench is inclined to the view that there would have been no necessity for the Constitution Bench to discuss the law elaborately and to stress on the need for the enquiry report to be furnished to the delinquent employee. The Constitution Bench may have simply stated that if an employer, post-November 20, 1990, is found not to furnish copy of the report of enquiry to the delinquent employee and disciplinary action is taken without adhering to the law requiring furnishing of the enquiry report, and the issue reaches the competent court of law for its determination at a subsequent stage, the employer may not be required to say why the report was not furnished and its action could be interdicted only if the delinquent employee succeeds, on the touchstone of prejudice, to prove that reasonable opportunity to defend was denied to him. Dilution of the law laid down by the Constitution Bench (regarding the necessity to furnish enquiry report to a delinquent employee before disciplinary action is taken, which is part of natural justice) by interpretative exercises subsequently undertaken without bearing in mind other Constitution Bench decisions [holding that violation of a principle of natural justice is violation of Article 14 of the Constitution (AIR 1985 SC 1416 : Union of India v. Tulsiram Patel), non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary (AIR 1981 SC 136 : S.L. Kapoor v. Jagmohan, approved by the Constitution Bench in AIR 1986 SC 180 : Olga Tellis v. Bombay Municipal Corporation) and no prejudice need be proved for enforcing the fundamental rights (AIR 1988 SC 1531 : A.R. Antulay v. R.S. Nayak)] is an unfortunate development likely to invite the frown of encroachment upon the rule of law.
46. What then should be the proper course for the court/tribunal once the matter reaches it? The proper course would thus seem to this Bench to be to enquire from the employer ~ public or private ~ the reason for not furnishing copy of the enquiry report to the employee. This course, experience has shown, is seldom followed. If no justification is forthcoming and the court/tribunal has reasons to believe that copy of the enquiry report was not furnished with a view to advance an unholy cause or prompted by an extraneous reason or simply because of utter carelessness, the order of punishment ought not to be allowed to stand for a moment on the premise that the employer cannot be allowed to derive any advantage out of its own wrong and the matter remitted to the disciplinary authority to resume proceedings from the stage of consideration of the employee's representation against such report. Should the court/tribunal be satisfied that there was genuine endeavour to furnish the enquiry report to the employee but for some reason or the other, beyond the control of the employer, the report could not reach the employee, or some other justification is provided that is acceptable to the court/tribunal, the "prejudice" principle may be applied. However, application of the "prejudice" principle without embarking on an enquiry of the nature indicated above, in the humble understanding of this Bench, would tantamount to subverting the law laid down by the Constitution Bench in B. Karunakar (supra).
47. This Bench now proposes to deal with the issue before it on the anvil of breach of natural justice as well as breach of the rules/regulations governing domestic enquiry, in the light of guidance provided by the aforesaid decisions.
48. In order to obtain relief on the ground of breach of natural justice, prejudice suffered by the delinquent employee due to non-service of copy of the report of enquiry has to be shown. Obviously, it is for Dipak, the delinquent employee, to demonstrate and prove prejudice. Unfortunately, Dipak is no more. Who is then to demonstrate prejudice and prove it? Is it for the petitioner, widow of Dipak to demonstrate and prove prejudice? Has the appellate authority in its order dealt with Ground No. XIV and observed that since no prejudice had been proved, Dipak is not entitled to succeed on such ground? What was the reason for which the appeal was kept pending for more than seven years before it was ultimately decided on February 24, 2016? Who is responsible for the delay in such disposal? Why should the petitioner suffer for the failure/negligence of the respondents to decide the appeal within the time frame fixed by this Court when Dipak was alive? Had the appeal been taken up for consideration by the appellate authority for decision within the time stipulated in the order dated February 2, 2009 (four weeks from date of receipt of the appeal, which was received on February 12, 2009), Dipak could have been called upon to prove the prejudice he had suffered by reason of non-service of copy of the enquiry report. He was alive till May 21, 2010. There is no material on record to suggest that Dipak relinquished a right conferred on him. Having deprived him of such opportunity, does it behove the respondents including the appellate authority to raise the point of "prejudice" before this Bench? The answer cannot but be in the negative. Taking a cue from the decision in Gorkha Security Services (supra) it may be observed that the appellate authority in the impugned appellate order not having said that failure to furnish copy of the report of the enquiry officer did not cause any prejudice to Dipak, it is not open to the respondents to raise the point of "prejudice". Had the report been furnished, the onus would have shifted on Dipak to prove that the enquiry officer acted illegally and arbitrarily in proceeding with the enquiry ex parte. Unfortunately, the appellate authority took its own sweet time and decided the appeal even after more than ten months beyond the time stipulated in the subsequent order of the coordinate Bench dated February 20, 2015. It is in such circumstances that this Bench holds the ratio of the decisions in Krishan Lal (supra), Harendra Arora (supra), Bishambar Das Dogra (supra), Kailash Chandra Ahuja (supra) and Manoj Kumar Sinha (supra) to be inapplicable here.
49. Attention must now be adverted to ascertain the position of the rules/regulations. The parties have not referred to the same. What are the rules/regulations that governed the domestic enquiry conducted against Dipak? What do they provide? The North Bengal State Transport Corporation Employee's Service Regulations, 1964 framed in exercise of power conferred by sub-section (1) read with clause (c) of sub-section (2) of section 45 of the Road Transport Corporation Act, 1950 is applicable. The Regulations are silent on the aspect of furnishing of the report of enquiry to a delinquent employee. In terms of the ratio of the Constitution Bench decision in B. Karunakar (supra) while answering question (i), the obligation to furnish the enquiry report has to be read into the Regulations. The disciplinary authority of Dipak could not have avoided service of the enquiry report. The disciplinary authority of Dipak having violated the mandate of law without any reason worth the name, and having regard to the settled law that any order/action that is passed/taken in violation of binding decisions of the Supreme Court is a nullity, the final order punishing Dipak with deduction in excess of Rs.2,00,000/- from his retiral benefits is non est and, accordingly, stands struck down. The appellate order is also set aside on the ground of perversity for non-consideration of Ground No. XIV, as well as closed mind of the appellate authority.
50. Consequent to setting aside of the orders of the disciplinary authority and the appellate authority, the disciplinary proceedings would revive but having regard to the death of Dipak, the same would now be stillborn. There being no valid order of punishment in the eye of law, the petitioner is entitled to the entire sum that was deducted from Dipak's retiral benefits, i.e. Rs.2,34,394/-.
51. Let such sum be paid to the petitioner within a month from date of receipt of a copy of this judgement and order positively, failing which the respondents shall be liable to pay interest at the rate of 12% on such sum from the 31st date till actual payment.
52. The writ petition stands allowed. For keeping the appeal of Dipak pending for seven years and causing harassment to him as well as the petitioner, she is entitled to costs assessed at Rs.1,00,000/-. Such sum shall also be paid within the aforesaid period of one month.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)