Madras High Court
S. Muthusaravanan vs Deputy Registrar, Co-Operative ... on 10 March, 1999
Equivalent citations: (1999)2MLJ188
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the proceedings of the respondent dated 8.8.1991, the petitioner has filed the above writ petition to quash the same on various grounds.
2. The case of the petitioner is briefly stated hereunder: While he was serving as secretary of Avinashi Co-Operative Housing Society Limited, he was temporarily suspended by the Respondent on 16.11.1990. Thereafter he was informed that charge-sheet would be served on him separately. He was served with a charge sheet dated 21.11.1990 containing 9 charges under the head of dereliction of responsibilities etc. He sent his detailed objections dated 14.12.1990. Thereafter, he received a communication calling upon him why he should not be removed from service on account of dereliction of duty and non-observance of the directions given by the superiors. He sent his reply on 16.1.1991. However, the respondent constituted an enquiry on 27.3.1991 and appointed one Murugesan, an advocate of Coimbatore Bar as Enquiry officer. The enquiry was conducted on several occasions. There was no presenting Officer. Even though the Enquiry Officer promised to give him copies of the statements recorded from him and from Karunakaran, he did not do so. Subsequently, the enquiry officer submitted a report. The copy of the report was not given to him. Relying upon the said report and accepting the enquiry officer's conclusions, the respondent passed an order on 8.8.1991 reverting him to the position of clerk. Against the said order, the petitioner has filed the above writ petition.
3. The respondent filed a counter affidavit wherein it is stated that during the year 1981, the petitioner was promoted as Secretary of the respondent society, previously he was the supervisor, Several irregularities committed by the petitioner came to light during the audit and inspection. For the acts of commissions and omissions, he was placed under suspension pending investigation and thereafter, he was asked to offer his explanation. He wanted to have the inspection of the records and he was granted permission for the same. After inspection, he gave his explanation on 14.12.1990. Since his explanation was found to be unacceptable, by a notice dated 29.12.1990, he was asked to show cause why disciplinary action should not be taken against him for the charges levelled against him. A domestic enquiry was held and the petitioner fully participated in it. The enquiry officer gave his report on 10.6.1991 holding that the charges against the petitioner were proved. The report of the enquiry officer was placed before the General Body in the meeting held on 19.7.1991. The General Body recorded that he should be demoted as Supervisor-cum-clerk without reduction in his emoluments. By an order dated 8.8.1991, the decision of the General Body was communicated to the petitioner and he was reverted as Supervisor-cum-Clerk. The said demotion is perfectly valid in law and justified and the same is not liable to be interfered with for all or any of the reasons urged in the writ petition. The petitioner was given every opportunity to peruse the records and there is no basis for any of the contentions raised in the writ petition; accordingly, the respondent prayed for dismissal of the writ petition.
4. In the light of the above pleadings, I have heard the learned Counsel for the petitioner as well as respondent.
5. Learned Counsel for the petitioner has raised the following contentions:
(i) The copies of the statements or evidence made during the enquiry were not furnished to him;
(ii) The enquiry report was not furnished to him before passing the impugned/order;
(iii) The punishment imposed on the petitioner, namely, reversion is not authorised any-where in the Bye-Laws of the respondent society.
6. On the other hand, learned Counsel appearing for the respondent would contend that petitioner was given adequate opportunity before the Enquiry Officer to defend his case and, in any event, in the absence of furnishing a copy of the report, no prejudice was caused to him. He also contended that the punishment of reversion is authorised and the respondent is justified in imposing the same.
7. I have carefully considered the rival submissions.
8. in view of the limited questions raised, it is unnecessary to traverse the details regarding the nine charges framed against the petitioner. Even on receipt of the show cause notice, the petitioner wanted to have inspection of the records and he was granted permission for such inspection. After the inspection of the records, he gave his explanation on 14.12.1990. It is seen from the proceedings that his explanation was considered and the same was found un-acceptable by the respondent. Thereafter, by a show cause notice dated 29.12.1990, he was asked to show cause as to why disciplinary action should not be taken against him for the charges framed against him. Thereupon, a domestic enquiry was held and in which he participated. It is seen from the records produced and the particulars enclosed in the Typed set of papers for the show-cause notice dated 21.11.1990, the petitioner offered his explanation for each charge with facts and figures on 14.12.1990. It is seen from the proceedings of the respondent dated 29.12.1990 that each charge was considered with reference to the explanation offered by the petitioner as well as documents and other connected record. In the said proceedings after holding that the explanation offered by the petitioner is unacceptable a second show cause notice was issued as to why he should not be terminated from service within a period of five days from the date of receipt of the said notice. In pursuance of the said notice, the petitioner submitted an explanation on 16.1.91. Thereafter, in the light of the proved charges, report of the enquiry officer, and further explanation offered by the petitioner in pursuance of the 2nd show cause notice, after holding that dismissal from service is the appropriate punishment, taking lenient view and in order to give him one more opportunity, he has been reverted from the post of secretary to the post of supervisor-cum-clerk with effect from 8.8.1991 (the date of order). It is clear that the petitioner was given adequate opportunity to put-forth his case before the Enquiry Officer and he was given one more opportunity before passing the impugned order of reversion. In such circumstances, it is not established that he was prejudiced for non-furnishing of a copy of the report of the enquiry Officer before passing the impugned order.
9. No doubt, in the case of Chief Engineer/Distribution, T.N.E. Board v. C.N. Ramaswamy 1984 Writ L.R. 301, a Division Bench of this Court has taken a view that failure to supply a copy of the report of the enquiry officer vitiated the enquiry and the ultimate order passed thereon. In Union of India v. Mohd. Ramzan Khan , their Lordships of the Supreme Court have held that the delinquent is entitled to a copy of the enquiry report and its proceedings. They also held that the proposition shall have only prospective application. The said decision is 20.11.1990. Inasmuch as the impugned order in our case was passed on 8.8.1991 much after the decision of Mohd. Ramzan's case undoubtedly the law laid down in that decision is applicable to the present case However, the learned Counsel appearing for the respondent by relying on a subsequent decision of the Supreme Court, has contended that if sufficient opportunity was given to the delinquent and no prejudice was caused due to non-supply of enquiry report, the ultimate order passed by the disciplinary authority is not vitiated. In Managing Director, ECIL., Hyderabad v. B. Karunakar (1994) 1 L.L.J. 162, the Constitutional Bench of the Supreme Court considered the law laid down in Mohd. Ramzan's case. After extensively dealing with the matter, Their Lordships have formulated five points in. para 30 of their order. Clause (V) of para 30 is an answer to our question which runs as follows:
Para 30 (v), The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry 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 enquiry 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 backwages 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 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.
After holding so, their Lordships have laid down the procedure to be followed in para 31 as follows:
Hence in all cases where the Inquiry 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 courts/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 shortcuts. Since it is the court/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 enquiry, 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 benefited from the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the combination 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 enquiry 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 he held, that will also be the correct position in law.
10. In State Bank of Patiala v. S.K. Sharma , two Judges Bench decision of the Supreme Court, after considering Mohd. Ramzan's case and B. Karumakar's case, (1994) 1 L.L.J. 162 summarised seven principles, They are:
33. We may summarise 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 enquiries 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 provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - "No notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. 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 principles stated under (4) herein-below 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 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 the 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 (inclusive the setting aside of the order of punishment) Keeping in mind the approach adopted by the constitution Bench in B. Karunakar (1993) 4 A.C.C.727 : 1993 S.C.C. (L&S) 1184), 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 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, 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). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the court or tribunal has to be 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 mid the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure or justice. It is this Objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situation where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situation, the High court may have to balance public/State interest With the requirement of natural justice and arrive at an appropriate decision.
11. From the law laid down by the constitutional Bench in B. Karunakar's case (1994) 1 L.L.J. 162 and the subsequent decision of the Supreme Court in S.K. Sharma's case it is clear that due to non-supply Of enquiry report, there is no need to reinstate the delinquent with all monetary benefits. In our case, it is specifically stated that even before framing of the charges, the petitioner was given an opportunity by way of a show cause notice to put-forth his claim with reference to the allegations made. He submitted his explanation. Since the same was not acceptable by the Board, necessary charges were framed and enquiry conducted. Even before that i.e., before submitting his explanation, as requested by the petitioner, he was granted permission to peruse the records and only after inspecting the records, he gave his explanation on 14.12.1990. No doubt, the said explanation was found to be unacceptable. It is not the case of the petitioner that he did not participate in the enquiry. It is also brought to my notice the special Bye-Laws applicable to the petitioner which would show that there is no provision for issuance of second show cause notice, nor is there any obligation to furnish a copy of the enquiry proceedings or findings to the charge-sheeted employee. In our case, though the respondent failed to send a copy of the enquiry report, the petitioner was give a second show cause notice and he also submitted his further explanation. In such circumstances, as observed by their Lordships in B. Karunakaran's case, even before this Court it is not demonstrated how the petitioner was prejudiced by the non-furnishing of a copy of the enquiry report. As a matter of fact, the petitioner submitted his detailed explanation without any difficulty in respect of the second show cause notice. In such circumstances, as directed by their Lordships in B. Karunakar's case as well as in S.K. Sharma's case and in the light of the particulars available, J hold that no prejudice was caused to the petitioner owing non-furnishing of a copy of the enquiry report. As a matter of fact, even though initially the respondent Board had taken a decision to terminate him from service, taking a lenient view, the punishment of reversion has been imposed from the post of secretary to the post of supervision-cum-clerk. Accordingly, I sustain the impugned order passed by the respondent.
12. Regarding the contention that "reversion is not one of the punishments" as provided in the Bye-laws, in the light of the particulars furnished in para 4 of the counter affidavit, the said contention is liable to be rejected. Though 'reversion" is not specifically mentioned in the special Bye-laws as a punishment, in the light of the fact that various punishments, namely, censure, withholding of increment, suspension and dismissal alone are mentioned, besides the name of the authority to impose such punishments and the rank of the employees, I am of the view that this is an appropriate case in which the delinquent is a fit and proper person to face the punishment of reversion to a lower post in respect of the proved charges; accordingly I reject the said contention also.
13. In the light of what is stated above, I do not find any error or infirmity of acceptable ground to interfere with the impugned order; consequently the writ petition fails and the same is dismissed. No costs. Consequently, W.M.P.No. 19688 of 1991 is also dismissed.