Andhra HC (Pre-Telangana)
P. Eswaraiah vs State Of A.P. And Others on 18 August, 2001
Equivalent citations: 2001(5)ALD644, 2001(5)ALT300
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
S.B. Sinha, C.J.
1. How far and to what extent, the principles of natural justice should be complied with by supplying a copy of the enquiry report, is the question involved in this application.
2. The applicant was placed under suspension by the second respondent herein by his proceedings dated 26-7-1991 for the financial irregularities, alleged to have been committed by him while working as Extension Officer (Panchayats) at Proddatur, Cuddapah District. The enquiry Officer found him guilty of the 28 charges as against 44 charges framed against the applicant. The applicant attained the age of superannuation during the course of enquiry, he was permitted to retire from service under Rule 9 of A.P. Revised Pension Rules pending disposal of the disciplinary proceedings.
3. Ultimately after the enquiry, the Government by proceedings dated 23-11-1995 directed the concerned authorities to recover an amount of Rs. 5,54,567-47 from the applicant. Since the applicant-petitioner failed to remit the amount found to be misappropriated, the District Collector by his proceedings dated 21-6-1996 directed the Mandal Revenue Officer, Cuddapah to recover the said amount from the applicant invoking Section 150 (2) of the A.P. Gram Panchayat Act, 1964 and the provisions of the Revenue Recovery Act.
4. Original Application No. 3632 of 1996 filed by the petitioner questioning the said proceeding was dismissed by the State Administrative Tribunal through the impugned order in this writ petition. Aggrieved by the order of the learned Tribunal, the petitioner filed the present writ petition.
5. The learned Counsel for the petitioner would submit that by reason of non-supply of the enquiry report, his client has greatly been prejudiced. The learned Counsel would contend that the learned Tribunal failed to take into consideration that no procedure laid down under the A.P. Civil Service (Classification, Control and Appeal) Rules had been followed and thus the impugned order in the writ petition cannot be sustained.
6. Having regard to the fact situation obtaining in the case, it is not necessary for us to go into the other questions as to whether enquiry had been conducted in terms of the said rules or not. The Enquiry Officer has come to the conclusion that 28 charges have been proved. A show-cause notice was issued to the petitioner thereafter. He submitted an explanation on 22-7-1995 stating:
In obedience to the reference to the Memo cited (Government Memo No. 87927/ E.IX/92-1, PR.RD Department, dated 18-7-1995), I submit that I am willing to accept the punishment proposed in the reference cited as I have already suffered 4 years without full pension and other terminal benefits. Any further delay in releasing my impounded pension etc., will cause me a great mental agony. In this connection, I beg to submit that the punishment now imposed on me may not be recurring recovery. It may kindly be relaxed after some reasonable time as most of the charges framed against me have not been proved.
7. Having accepted the punishment and merely making a plea to the effect that punishment may not be a recurring one and further having pleaded for relaxation in the matter, can the petitioner now turn round and question the validity or otherwise of the enquiry? The answer to the said question must be rendered in negative.
8. The principles of natural justice cannot be applied in its rigidity. Its application is flexible. To what extent a person is entitled to an opportunity of hearing would depend upon the fact situation obtaining in each case as has been held in K.L. Thripathi v. State Bank of India, .
In S.L. Kapoor v. Jagmohan, , it has been held:
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The 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. It comes from the person who has been denied justice is not prejudiced. 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.
9. The doctrine of principles of natural justice has undergone a sea-change. In State Bank of Patiala v. S.K. Sharma, , the Apex Court keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee enunciated, inter alia, the following principles:
(a) 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.
(b) A substantive provision has normally to be complied with and the theory of substantive compliance or the test of prejudice would not be applicable in such a case.
(c) In case of violation of a procedural provision, it is to be seen whether it falls under 'no notice', 'no opportunity' and 'no hearing' category. Except cases falling under 'no notice', opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice. If it is found that a delinquent employee has been 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, no interference is called for. There may, however, be certain procedural provisions which are of a fundamental character, whose violation by itself is proof of prejudice. The Court may not insist on proof of prejudice in such cases.
(d) In case of a procedural provisional which is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantive compliance. The order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(e) In case of violation of 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 former, then it must be seen whether the delinquent employee has waived that 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 employee has not waived it, then the Court or Tribunal should make appropriate directions including the setting aside of the order of the punishment.
(f) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice, the Court or 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. In the case of former, the order passed would undoubtedly be invalid or one may call it "void" or a nullity. But in the latter case, the effect of violation has to be examined from the standpoint of prejudice.
10. In Kimitan (India) Limited v. Union of India, 1999 (2) Cal.LT 478, a Division Bench of Calcutta High Court to which one of us (Satya Brata Sinha, CJ) was party, observed:
Assuming for the sake of arguments that violation of the principles of natural justice has taken place, and thus, Court may exercise its jurisdiction under Article 226 of the Constitution of India, a question would arise as to whether keeping in view of the facts and circumstances of the case it would entertain the writ application.
The concept of principles of natural justice has undergone a radical change. It is not in every case, that the High Courts would entertain a writ application only on the ground that violation of principles of natural justice has been alleged. The Apex Court, in State Bank of Patiala and others v. S.K. Sharma has clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The Apex Court has held that the principles of natural justice, may be said to have been violated which require an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director, ECIL v. B. Karmakar, reported in AIR 1994 SC 1076. The question as to the effect of non-grant of enough opportunity to the learned Counsel for the appellant by the Commission to meet the allegations made in the supplementary affidavit requires investigation. As to what extent the appellant has suffered prejudice would be a question which would fall for a decision of a Higher Court. Where such a disputed question arises, in the considered opinion of this Court, a writ application will not be entertained only because violation of natural justice has been alleged and more so, in a case of this nature where such a contention can also be raised before the Highest Court of India. A distinction has to be borne in mind between a forum of appeal which is presided by an administrative body and the Apex Court as an Appellate Court."
11. This aspect of the matter has been considered by a Division Bench of this Court in Ch. Anitha v. State of Andhra Pradesh, 2001 (2) ALD 358, and also by another Division Bench of this Court in V. Rajamallaiah v. High Court of A.P., , wherein it was observed:
..... As quite often said and reiterated by the Courts, procedure is hand-made of justice and it is essentially meant to advance justice. It is not the case of the petitioner that on account of this departure in the procedure, the petitioner could not effectively cross-examine the witnesses produced on behalf of the disciplinary authority. If that was the case, he ought to have made complaint to the Enquiry Officer in that regard or before the disciplinary authority or before the High Court on administrative side. Though the fact of the Enquiry Officer examining the petitioner in the first instance was stated in the Memorandum of Appeal before the High Court, no prejudice on that count was pleaded in the Memorandum of Appeal.
12. Recently, the Supreme Court, in Aligarh Muslim University v. Mansoor Ali Khan, , held that when from the admitted or indisputable facts unauthorised absence becomes unrefutable, not giving a notice to show-cause cannot be considered as prejudicing the employee.
13. In Vijay Kumar Nigam (Dead) Through LRs. v. Stale of M.P., , it was held:
The main ground was that the report of the preliminary enquiry conducted against him before initiating departmental enquiry, was not supplied to him and, therefore, it is violative of the principle of natural justice. The High Court has rejected the contention and, in our view, quite rightly. The preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee.
14. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra, , it was held:
Learned Counsel for the petitioner sought to contend that the petitioner has not committed any misappropriation and that he was forced to deposit the money. We cannot accept the contention in view of the fact that the petitioner himself had deposited the amount. It is then contended that the preliminary enquiry was not properly conducted and, therefore, the enquiry is vitiated by principles of natural justice. We find no force in the contention. The preliminary enquiry has nothing to do with the enquiry conducted after the issue of the charge-sheet. The former action would be to find whether disciplinary enquiry should be initiated against the delinquent. After full-fledged enquiry was held, the preliminary enquiry had lost its importance.
15. In N.C. Padmanabhan v. Board of Directors, , it was observed;
While putting forth the third contention, the learned Counsel for the petitioner placed reliance on the judgment of the Supreme Court in State Bank of India v. D.C. Agarwal . I should state at the threshold that this decision was cited before the Court in support of the contention out of the context and without any relevance. It goes without saying that if the disciplinary authority makes use of any undisclosed material against the delinquent, on that count itself, the disciplinary proceedings will be vitiated. In that judgment, the report of the Central Vigilance Commissioner was made use of against the delinquent without furnishing the report to the delinquent. In the instant case, the disciplinary authority has not based any reliance on the report of the Vigilance Commissioner.
16. In Secretary to Government of Tamil Nadu v. D. Subramanya Rajeevan, , it was held:
There is no such principle of natural justice that before holding a regular departmental enquiry the disciplinary authority itself should hold a preliminary enquiry by first drawing up a charge memo and then calling for the written statement of defence before taking a decision to hold a regular departmental enquiry.
The decision of the Apex Court in Slate of UP. v. Shatrughan Lal, 1998 (5) SLR 43, was rendered in a different fact situation. In that case, some documents were sought for before a reply could be given. In answer to the charge-sheet the said documents could have been the basis of his defence. Those documents were relied upon in the charge-sheet, in that situation, the Apex Court observed:
Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.
17. In the instant case, as noticed hereinbefore, the investigation report which was made use of only for the purpose of prima facie satisfaction of the disciplinary authority was not relied upon at all by way of proof in support of the articles of charges.
18. In Kashinath Diskhita v. Union of India, , the delinquent officer therein sought for the statements made by the witnesses at the pre-enquiry stage. In that case records had clearly shown that the statements, which had been relied upon were denied and even an application was filed for furnishing the copies of the documents and the statements in question which were cited in evidence. It was in that fact situation, it was observed:
This application was unceremoniously rejected by the Board on December 20, 1963. It is thus clear that the appellants's request for supply of copies of relevant documents and statements of witnesses has been refused in no unclear terms. We do not consider it necessary to burden the records by quoting the extracts from the letters addressed by the appellant and the reply sent to him.
The extracts quoted hereinabove leave no room for doubt that the disciplinary authority refused to furnish to the appellant copies of documents and copies of statements. When a Government servant is facing a disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him, (underlining is ours)
19. Even where certain documents asked for by the delinquent is not supplied despite a direction to that effect by the Enquiry Officer having regard to the conduct of the delinquent officer, it may be held that he was not seriously prejudiced with the non-supply thereof. Reference in this connection may be made to Syed Rahimuddin v. Director-General CSIR, 2001 AIR SCW 2388.
20. In Managing Director, ECIL v. B. Karunakar, the Apex Court held:
The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist 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 a "unnatural expansion of natural justice" which in itself is antithetical to justice.
21. Yet again recently, in Oriental Insurance v. S. Balakrishnan, the said decision has been followed stating:
Applying the principles indicated by this Court in ECIL case to the facts of the present case, we cannot conceive any prejudice which is said to have been caused to the delinquent, and therefore non-supply of the enquiry report could not have been held to have vitiated the entire proceedings.
22. In the instant case, the petitioner has been found guilty of as many as 28 charges. Above all, they would constitute grave misconduct and he had also accepted the punishment. Therefore he cannot now be permitted to approbate or reprobate nor he can be permitted to resile from his earlier position as regards the punishment by contending that a copy of the enquiry report had not been furnished to him. No case has been made out for interference with the impugned order. Hence, the writ petition is dismissed. No costs.