Central Administrative Tribunal - Delhi
Raghubar Prasad vs Delhi Jal Board Through Its on 23 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1370/2011 New Delhi this the 23rd day of November, 2011 Honble Dr. Veena Chhotray, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Raghubar Prasad, S/o Sh. Shiv Nath, R/o J-85, Gali No.37, Rajpuri, Uttam Nagar, New Delhi. -Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Delhi Jal Board through its Chief Executive Officer, Varunalaya, Phase-II, Karol Bagh, New Delhi-110005. 2. The Member (Administration), Delhi Jal Board (Vig. Department), Varunalaya, Phase-II, Karol Bagh, New Delhi-110005. 3. The Inquiry Officer through Chief Executive Officer, Varunalaya, Phase-II, Karol Bagh, New Delhi-110005. -Respondents (By Advocate: Shri Nishakant Pandey) O R D E R
Honble Mr. A.K. Bhardwaj, Member (J) In Civil Writ Petition No.5976 of 2003 filed in High Court of Delhi, it was alleged that a large number of people had secured employment in Government of India, Government of National Capital Territory of Delhi and its agencies viz; DDA/NDMC/Schools and Colleges of Delhi against reserved categories on the basis of forged/false Scheduled Tribes (ST) certificates. In the said Writ Petition, Honble High Court passed order dated 14.07.2004 directing for verification of details of all such persons who had obtained employment in ST category. On preliminary verification conducted in compliance of order of Honble High Court, it appeared that more than 30% of ST certificates presented by candidates were either forged or false. Thus, the Government decided to carry out detailed verification of all such certificates produced before various appointing authorities since 1995. In order to achieve such task in a time bound manner, Government had set up a coordinating mechanism under the Chairmanship of Shri M.L. Sharma, Additional Director, CBI and Chief Vigilance Officers (CVOs) of all Ministries/Departments. The CVOs were requested to initiate said task by collecting the details of all those who have been appointed in the Ministries/Departments/agencies including CPSUs since 1995 on the basis of ST certificates.
2. Paras 3 to 5 of OM dated 25.05.2005 issued by Government of India (Department of Personnel & Training) setting up of the aforementioned mechanism read as under:-
3. In order to achieve this task in a time bound manner, Government has set up a coordinating mechanism under the Chairmanship of Shri M.L. Sharma, Additional Director, CBI and the Chief Vigilance Officers (CVOs) of all Ministries/Departments. The CVOs are requested to initiate this task by collecting the details of all those who had been appointed in the Ministries/Departments/or its agencies including CPSUs with which they are concerned, since 1995 on the strength of ST certificates. The original ST certificates produced at the time of appointment or whenever verified last, may be taken in personal custody by the CVO. If these certificates are found to be forged/false, these may have to be produced in the appropriate court for taking action according to law.
4. After obtaining the ST certificates, these may be subjected to verification, by sending them to the concerned district authorities viz. District Collectors, Deputy Commissioners and District Magistrates under intimation to the Chief Secretary of the State concerned for confirming the authenticity of the certificates or certifying that the government employee actually belongs to a Scheduled Tribe in those cases where records are not available for any reasons.
5. In case any certificate is found to be forged/false or any person who is found to be ineligible for not being member of Scheduled Tribe, legal action may be initiated against such persons by filing criminal case as well as departmental action for grave misconduct. The objective of this exercise is not to harass the government employees who have obtained employment on the strength of a genuine ST certificate but to identify all those employees who have used a fake/false certificate in obtaining employment thereby depriving genuine persons belonging to ST of their right.
3. Pursuant to aforementioned Office Memorandum, respondents department, i.e., Delhi Jal Board also vide its letter dated 03.06.2005 sought requisite information to produce the same before Honble High Court. Subsequent thereto, a meeting of Central Vigilance Officers of Central Government, Govt. of NCT of Delhi, PSUs and Banks etc. was held on 14.06.2005 and 15.06.2005 at CBI Head Office, New Delhi. In the said meeting, it was decided to conduct a thorough and detailed verification of all ST certificates in a time bound manner to identify such individuals who secured jobs on the basis of forged/fake certificates.
4. It was in the above backdrop that letters were returned to District Magistrate, Siwan (Bihar) by Vigilance Department for verification of ST certificate of applicant on the basis of he was appointed in Delhi Jal Board as Fitter, 2nd class. The District Magistrate, Siwan vide his letter No.1022 dated 30.08.2007 intimated that no such certificate had been issued from his office in the name of applicant. In view of the stand taken by District Magistrate in his aforementioned letter, Delhi Jal Board (Government of NCT of Delhi) issued Memorandum dated 14.05.2008 thereby Shri Raghubar Prasad was appointed as Fitter 2nd Class in the year 1997 against the quota of Scheduled Tribe on production of Scheduled Tribe Certificate issued by District Magistrate, Siwan, Bihar vide No.36/90 dated 8.5.1990. District Magistrate vide letter No. 1022 dated 30.8.2007 intimated that no such certificate has been issued in the name of Shri Raghubar Prasad S/o Shri Shiv Nath. This clearly reveals that forged ST certificate was produced by Shri Raghubar Prasad S/o Shri Shiv Nath to get himself appointed in Delhi Jal Board as Fitter 2nd Class against ST quota. Thus, Shri Raghubar Prasad, Fitter 2nd Class failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming to an employee of DJB. He has, thereby contravened Rule 3 (1) (i)(ii) & (iii) of CCS (Conduct) Rules 1964 as amended from time to time and made applicable to the employees of Delhi Jal Board.
5. Applicant submitted his written reply dated 26.05.2008 to Member (Administration) Delhi Jal Board rebutting the aforementioned charges. In the said written reply, applicant pleaded:-
i) The letter No. 1022 dated 30.8.2007 on which the Memorandum dated 14.05.2008 had not been supplied to him.
ii) He had born in a remote village of Gujedpur, District Siwan, Bihar on 08.05.1968 in Kharia family, which is also known as Nonia in State of Bihar and said community is scheduled as Tribal community.
iii) The Tribal certificate dated 08.05.1990 issued by District Magistrate, Siwan, was procured by his guardians and he had no reason to doubt the genuineness of the same.
iv) He was appointed in Delhi Jal Board after due verification of his caste/tribe by appointing authority.
v) Letter dated 30.8.2007 issued by District Magistrate, Siwan could not set aside the outcome of procedure followed for initial appointment of applicant and ought to contain clarification regarding Serial number of relevant register/record maintained in the office of District Magistrate, Siwan to keep the record of ST certificates issued, as the certificate of applicant ought to had been supported by way of affidavit to that effect.
6. Mr. J.C. Atal appointed for the purpose conducted enquiry into charges leveled against applicant. In the enquiry report, communicated to applicant vide communication dated 04.05.09, Enquiry Officer noted that the prosecution cited three documentary evidences and produced one prosecution witness to substantiate the charge made against the applicant. In the said report, it is further noted that the prosecution witness was examined, cross examined and re-examined during the course of enquiry. As is recorded in Para-7 of enquiry report that applicant did not produce any witness in his defence but produced a list of documents viz;
Census of India, 1991 Series-5, Bihar (Ex. D-1) Gazette of India, Extraordinary, Part-II, Section-I, No.151 dated 20.-09. 1976, issued by Ministry of Law, Justice and Company Affairs.
7. Shri Rajagopalan SIO(Vig.-I), who was examined before the Inquiring Authority as PW-I stated that a vigilance communication was made by Vigilance Department vide letter No.DJB/Vig/SIO-I/2007/2897 dated 29.06.2007 alongwith the copy of ST Certificate No. 36/90 dated 08.05.90 with District Magistrate, Siwan (Bihar) seeking verification of ST certificate produced by applicant at the time of his appointment in the then DWs & SDU in the year 1997 as per direction of Delhi High Court. In response to which, it was intimated by District Magistrate, Siwan (Bihar) vide his letter No. 1022 dated 30.08.2007 (Ex-P2) that no such ST certificate had been issued in the name of applicant (Shri Raghubar Prasad S/o Shiv Nath, vide No. 36/90 dated 08.05.1990). In response to a question put to him on behalf of CO in cross examination during enquiry, PW-I stated that though the letter No.1022 dated 30.08.2007 did not contain the name of signing authority, i.e., District Magistrate, Siwan (Bihar) but same had been received from the office of District Magistrate (Bihar) in the name of ADOV. Relying upon the letter No.1022 dated 30.08.2007 issued from the office of District Magistrate, Siwan (Bihar), which contained proper dispatch number, date and signature of signing authority and was officially received from the office of District Magistrate, Siwan in the name of ADOV as well as on deposition of PW-I and other documentary evidences, Inquiring Authority concluded that the applicant got himself appointed as Fitter II class in Delhi Jal Board in the year 1997 by producing forged/bogus ST certificate. Concluding so, the Inquiring Authority hold the article of charge against the applicant as substantiated. Accepting the aforementioned inquiry report, Disciplinary Authority imposed the penalty of dismissal from service on applicant. Against said order, applicant preferred a detailed appeal dated 15.03.2010. The applicant assailed the order of penalty before the Appellate Authority contending:-
The authority who issued him Memorandum dated 03.05.2007 also sent letter dated 29.06.2007 to District Magistrate, Siwan (Bihar). Thus, the said authority was proceeding in the matter with prejudiced mind.
Although the report of verification of certificate dated 08.05.1990 was received vide letter No.567/K dated 30.08.2007, but in Memorandum dated 03.05.2007 itself, it was alleged that the ST certificate had not been issued by the office of District Magistrate, Chapra (Saran), thus, evidently the authorities were proceeding in the matter with predetermined motion.
The documents sought to be relied upon in support of charges were replaced by another set of documents.
Only prosecution witnesses examined in support of charge failed to prove the same.
Inquiry Officer violated principle of natural justice;
Although the CO submitted his written submission on 25.05.2009 by the Disciplinary Authority in its order recorded a finding that CO did not submit any comments.
Applicant belong to Kharia Sect. (Clan) of the Nonia Community, which is recognized as a Scheduled Tribe in Bihar;
IO and Disciplinary Authority did not care to consider the relevant portion of census of India 1991 Services 5 Bihar and the Gazette of India Extraordinary Part II Section I No.151 dated 20.09.1976 issued by Ministry of Law and Justice and Company Affairs.
8. The Appellate Authority examined over said appeal of applicant and rejected the same in terms of its order dated 24.03.2011. In the said order, the Appellate Authority viewed:-
A proper departmental enquiry was conducted wherein appellant was given full opportunity to defend his case and to produce evidences.
ii) No material had been taken on record behind the back of applicant by the Inquiry Officer.
iii) Representation made by the applicant was very much available on the file, which had been perused and considered.
iv) Applicant failed to produce any Notification wherein Nonia-Kharia or Kharia had been declared as Tribe Community.
v) Applicant also failed to produce any ST certificate issued by an authority either from Delhi Government or Bihar Government in favour of his close relative. Thus, he could not be said to be belong to ST community and was not eligible for selection under that particular community quota.
vi) Applicant was given personal hearing on 30.09.2010 wherein he showing his caste as Scheduled Tribe in his State within 45 days and he failed to produce within stipulated period.
9. In the present OA filed by applicant, he has assailed report of Inquiry Officer dated NIL, Order dated 15.02.2010 passed by Disciplinary Authority and Order dated 24.03.2011 passed by Appellate Authority on the following grounds:-
Letter dated 30.08.2007 issued by District Magistrate, Siwan (Bihar) was not authenticated by its author;
Additional documents required by the applicant to be produced before Inquiry Officer were not summoned by said authority;
Inquiry Officer did not comply with the provisions of Rule 14(18) of applicant;
Though the applicant had made representation against inquiry report but Disciplinary Authority did not consider the same and recorded a finding that no such representation was made. When Disciplinary Authority categorically recorded a finding that the applicant had not made any representation, Appellate Authority viewed that the Disciplinary Authority considered the comments dated 22.05.2009;
Letter dated 30.08.2007 written by District Magistrate, Siwan (Bihar) could not have nullified the appointment of applicant, which was outcome of due process;
Report of vigilance inquiry was not supplied to applicant;
Inquiry Officer did not consider the representation made by applicant.
10. In support of aforementioned contentions, Mr. S.K. Gupta, learned counsel appearing for applicant relied upon following judgments:-
1975 (1) SLR 500; Shri Mangal Singh Vs. The Commissioner of Himachal Pradesh Government Transport, Himachal Pradesh and another;
(1992) 19 ATC 659: Hari Giri Vs. Union of India & Ors;
1958 SCR 499: Union of India Vs. T.R. Verma;
(2008) 3 SCC 484: Moni Shankar Vs. Union of India & Another;
(2009) 12 SCC 78: Union of India and Others Vs. Gyan Chand Chattar.
11. Referring to the decision of Honble Himachal Pradesh High Court in the case of Shri Mangal Singh Vs. Commissioner of Himachal Pradesh Government Transport and Another decided on 09.09.1974, learned counsel appearing for applicant submit that in the said case Deputy Superintendent of Police was not produced in evidence and was not available for cross-examination by the petitioner, report submitted by him could not be relied upon as material against the petitioner. Submitting so, Mr. Gupta contends that the situation in the present case is identical, i.e., when District Magistrate could not be produced as evidences, his letter dated 30.08.2007 could not be relied upon and could not be found basis of holding the charge against applicant as proved. Making a reference in the case of Hari Giri Vs. Union of Indioa & Others, learned counsel for applicant again submitted that omission to examine District Magistrate, i.e., author of letter dated 30.08.2007 vitiated inquiry against applicant. It is also contended by Mr. S.K. Gupta, learned counsel for applicant that in view of decision of Honble Supreme Court in the case of Union of India Vs. T.R. Verma (SCR 1958 499, the law only requires that Tribunal should observe rules of natural justice such as that a party should have the opportunity of adducing all relevant evidence on which he relies in his presence and he should be given an opportunity to cross-examine the witness examined by that party and no material should be relied on against him without giving him an opportunity of explaining them.
12. As far as the decision of Honble Himachal Pradesh High Court is concerned, in the said case Deputy Superintendent of Police had submitted the report that he had found the petitioner allowing passengers to board the vehicle and travel in it without tickets being issued to them. Thus, his report was based on his own testimony, while in the present case, the District Magistrate, Siwan has written letter dated 30.08.2007 on the basis of record available. As far as decision of Hari Giri Vs. Union of India and Others (supra) is concerned, we find that in its view taken in Para-12 of the decision, this Tribunal relied upon aforementioned decision of Honble Himachal Pradesh High Court in the case of Mangal Singh Vs. Commissioner of Himachal Pradesh, wherein report of Deputy Superintendent of Police was based on his own testimony. However, in the case of Hari Giri (supra) also, the Vice Principal, D.G. D.A.V. Senior Secondary School, informed that no certificate had been issued by them to applicant. In the case of Union of India Vs. T.R. Verma (supra) the respondent who was working as Assistant Controller in Commerce Department of Union Government once dismissed from Government service. Challenging his dismissal from service, Mr. T.R. Verma filed an appeal by special leave against the judgment and order of High Court of Punjab for setting aside an order dated September 16,1954 for the reason that there was no proper inquiry. As many as seven grounds were set-forth in support of Writ Petitioner filed before Honble High Court and finding three of them established, Honble High Court had held that Shri T.R. Verma had been denied opportunity to cross examine witnesses who give evidences in support of charged, he was not allowed to make his own submission but was cross-examined by Inquiry officer. Likewise, the other witnesses were merely cross-examined by the Inquiry Officer while Shri T.R. Verma was not allowed to examine them. Considering the aforementioned defects as denial of reasonable opportunity to respondent (T.R. Verma) before it, Honble High Court considered the order of dismissal of Sh. Verma bad in law. As a result, Honble High Court set aside the order of dismissal of Shri T.R. Verma and directed him reinstatement. The said order of Honble High Court was challenged by Union of India before Hobnble Supreme Court by way of SLP, which was converted into appeal. Honble Supreme Court allowed the appeal of Union of India and revert the decision of Honble Punjab High Court. While doing so, Honble Supreme Court also dismissed the Writ Petition of Shri T.R. Verma. While allowing the appeal of Union of India and dismissing Writ Petition of Shri T.R. Verma, Honble Supreme Court ruled that the Indian Evidence Act has no application to enquiries conducted by Tribunals, even though they may be judicial in Court. Taking said view, Honble Supreme Court further ruled that the law requires the Tribunals to observe rules of natural justice in the conduct of the inquiry and if they do so, their decision would not liable to be impeached on the ground that the procedure followed was not in accordance with that. Relevant extracts of said judgment of Honble Supreme Court read as under:-
"Despite repeated verbal requests of the petitioner, the Inquiry Officer did not permit him to cross-examine any witness, who deposed against him".
But this was contradicted by Mr. Byrne, who filed a counter affidavit, in which he stated :
"(4) That it is incorrect that no opportunity was given to the petitioner at the time of the oral enquiry to cross-examine the witnesses who had deposed against the petitioner.
(5) That all witnesses were examined in petitioner's presence and he was asked by me at the end of each examination whether he had any questions to put.
(6) That the petitioner only put questions to one witness Shri P. Govindan Nair, and to others he did not".
On this affidavit, Mr. Byrne was examined in Court, and he repeated these allegations and added:
"I have distinct re-collection that I asked Shri T. R. Varma to put questions in cross-examination to witnesses."
It was elicited in the course of his further examination that he did not make any note that he asked Shri T.R. Varma to put questions in cross examination to witnesses and that that might have been due to a slip on his part.
We have thus before us two statements, one by Mr. Byrne and the other by the respondent, and they are in flat contradiction of each other. The question is which of them is to be accepted. When there is a dispute as to what happened before a court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct, and there is no reason why the statement of Mr. Byrne should not be accepted as true. He was admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses were examined on that date, among them being Sri C. B. Tawakley. If, as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses, Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross examine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him to cross-examine. The learned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine was disallowed. Then again, the learned Judges say that the respondent was present at the hearing of the writ petition before them that they put questions to him, and formed the opinion that he was sufficiently intelligent, and that it was difficult to believe that he would not have cross-examined the witnesses. We are of opinion that this was a consideration which ought not to have been taken into account in a judicial determination of the question, and that it should have been wholly excluded. On a consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.
The respondent attached the enquiry on two other grounds which were stated by him in his petition in the following terms:
"(C) That the petitioner was cross-examined and was not enabled to make an oral statement on his own behalf.
(D) That the defence witnesses were not given an opportunity to tell their own version or to be examined by the petitioner as their depositions were confined to answers in reply to questions put by the Inquiry Officer."
In substance, the charge is that the respondent and his witnesses should have been allowed to give their evidence by way of examination-in-chief, and that only thereafter, the officer should have cross-examined them, but that he took upon himself to cross-examine them from the very start and had thereby violated well- recognised rules of procedure. There is also a complaint that the respondent was not allowed to put questions to them.
Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co., 1957 SCR 98: ((S) AIR 1957 SC 232) (C) where this question is discussed.
We have examined the record in the light of the above principles and find that there has been no violation of the principles of natural justice. The witnesses have been examined at great length, and have spoken to all relevant facts bearing on the question, and it is not suggested that there is any other matter, on which they could have spoken. We do not accept the version of the respondent that he was not allowed to put any questions to the witnesses. Indeed, the evidence of Sri Jai Narayan at p. 188 of the Paper Book shows that the only question on which the respondent wished this witness to testify was put to him by Mr. Byrne. The evidence of Sri Bhan and Sri Fateh Singh was, it should be noted, wholly in support of the respondent. The findings of Mr. Byrne are based entirely on an appreciation of the oral evidence taken in the presence of the respondent. It should also be mentioned that the respondent did not put forward these grounds of complaint in his explanation dated September 11, 1953, and we are satisfied that they are wholly without substance, and are an afterthought. We accordingly hold, differing from the learned Judges of the Court below, that the enquiry before Mr. Byrne was not defective, that the respondent had full opportunity of placing his evidence before him, and that he did avail him-self of the same. In this view, it becomes unnecessary necessary to express any opinion on the second question which was raised by the learned Solicitor-General.
In the result, we allow the appeal, set aside the order of the Court below, and dismiss the writ application. There will be no order as to costs.
13. Having perused the aforementioned judgment of Honble Supreme Court, we find that the support, if any can be drawn for said judgment would be against applicant and not in his favour. In the said case, Honble High Court had accepted the plea of Mr. T.R. Verma that the denial of opportunity to cross-examine the witnesses to him had vitiated inquiry but Honble Supreme Court reversed such view of Honble High Court viewed that in the absence of any suggestion that there was any specific matter in respect of which cross-examination could have been done, denial of opportunity to cross-examine would not vitiate the enquiry. At this stage, we deem it appropriate to note that in the case of Hari Giri (supra), Tribunal had referred to aforementioned decision of Honble Supreme Court as under:-
Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice requires that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.
14. As can be seen therein from the aforementioned it rules of natural justice which is given paramount importance in dealing with the employee in disciplinary proceedings initiated against him. Thus, it would necessary and pertinent to analyze and discuss the expression natural justice and it is kept at length. Natural justice is another name for common sense justice and is not codified canons. They are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense in liberal way. Justice is based substantially of natural ideals and human values. The Administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Expression natural justice and legal justice do not present water tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose natural justice is called in aid of legal justice. It relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication.. It may good to omission of a formulated law. As Lord Buckmaster said no form or procedure should ever be permitted to exclude the presentation of a litigants defence.
15. Adherence to principle of natural justice as recognized by all civilized state is of supreme importance is a quasi-judicial body embarks on determining dispute between the parties or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle of rules of natural justice is what is commonly known as audi alteram partem rule. It says that no one should be condemned unhead. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works, 1963 (143) ER 414 the principle was thus stated:
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence.
"Adam" says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat".
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
In the case of Canara Bank and Ors Vs. Debasis Das and Ors. 2003 SCSLJ (1) page 399 the rules of natural justice and its various principles is follows:-
16. Principles of natural justice are those rules, which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
17. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, LJ.) in Ray v. Local Government Board, (1914) 1 KB 160 at p.199:83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman, 1943 AC 627: (1948) 2 All ER 337 Lord Wright observed that it was not desirable to attempt 'to force it into any Procrustean bed' and mentioned that one essential requirement was that the tribunal should be impartial and have no personal interest in the controversy, and further that it should give 'a full and fair opportunity' to every party of being heard.
18. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice, 1911 AC 179:80 LJKB 796 where Lord Loreburn, L.C. observed as follows:
"Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the board of education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The board is in the nature of the arbitral tribunal, and a court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the court is satisfied either that the board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari".
Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works, 1985 (10) AC 229 : 54 LJMC 81 where the learned and noble Lord Chancellor observed as follows:
"No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice".
Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done'.
19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
20. Natural justice has been variously defined by different judges. A few instances will suffice. In Drew v. Drew and Lebura, 1855(2) Macg. 1.8 Lord Cranworth defined it as 'universal justice' In James Dunber Smith v. Her Majesty the Queen, 1877-78(3) App.Case 614, 623 JC Sir Robert P. Collier, speaking for the judicial committee of Privy council, used the phrase 'the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works, (1884-85(10) App.Case 229, 240) Earl of Selbourne, S.C. preferred the phrase 'the substantial requirement of justice'. In Vionet v. Barrett, 1885(55) LJRD 39, 41 Lord Esher, MR defined natural justice as 'the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health, 1890(24)QBD712 Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin, 1963(1 )WB 569, 578 Harman LJ, in the court of appeal countered natural justice with 'fair- play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India, 1978 (2) SCR 621. In re R.N. (An Infaot), 1967(2) B617,530 Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. In Fairmount Investments Ltd. v. Secretary to State for Environment, 1976 WLR 1255 Lord Russell of Willowan somewhat picturesquely described natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball, 1977(1)WLR766 preferred the homely phrase 'common fairness'.
21. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep. 114 that is, 'no man shall be a judge in his own cause'. Coke used the form 'aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party'. The form 'nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audi alteram partem', that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's, 1605) 6 Co.Rep. 48-b, 52-a case or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.
16. As has been deduced from the above two rules and particularly the audi alteram partem rule, namely 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. In other words the proceedings do not come to end but only the defects into proceedings are removed or allowed to be removed. Further, as has been held by Honble Supreme Court, Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case.
17. In view of the aforementioned judgment of Honble Supreme Court principle of natural justice have been implies prejudice and useless formality theory i.e. in order to invite applications of principle of natural justice, the party affected need to be prejudiced caused by non-adherence to rules of natural justice. In other words in the case of a procedure provision which is not of mandatory character, the complaints of violation is to be examined from the stand point of substantial complaints. Be that as it may, the order passed in violation of such provision can be set aside only where such violation is occasioned prejudiced to the delinquent employees. There may be certain procedure provision which are of fundamental character violation of which is by itself proved prejudiced i.e. no notice, no principle, and no hearing categories. There may be a case where the procedure provision in rules expressly provide that if the evidence of the employer/Govt. is over, and the enquiry officer does not given that opportunity to the delinquent officer/employee asked for in such a situation the prejudice is self-evident and no approval is required. One of the test of prejudiced is whether the person concerned has ruled fair hearing considering of all these things. Besides the violation of procedure provision and thus can be mandatory which has to be ascertained whether the provision concept is in the interest of the person proceeded against order is on public interest. If it is found to be violation i.e. in the interest of person concerned then it must be seen whether the delinquent officer is waived the said requirement either expressly or by conducting if it is found to be waived then the order of punishment could not be set aside on the ground of said violation. If on the other hand it is found that that delinquent officer/employee is not waive it or the provision could not waived by him then the court or Tribunal should make appropriate direction (setting aside the order of punishment). The test prejudice, its obligation and consequences have been analyzed by Honble Supreme Court in the case of State Bank of Patiala vs. S.K.Sharma (JT 1996 (3) SC p.722. Relevant Paras of the said judgment read as under:-
33. Now, in which of the above principles does the violation of sub-clause (iii) concerned herein fall? In our opinion, it falls under Principles Nos. 3 and 4(a) mentioned above. Though the copies of the statements of two witnesses (Kaur Singh, Patwari and Balwant Singh) were not furnished, the respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross-examining the witnesses or to defend himself. The Trial Court has not found that any prejudice has resulted from the said violation The Appellate Court has no doubt said that it has prejudiced the respondent's case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all.
34. For the above reasons, we hold that no prejudice has resulted to the respondent on account of not furnishing him the copies of the statements of witnesses. We are satisfied that on account of the said violation, it cannot be said that the respondent did not have a fair hearing or that the disciplinary enquiry against him was not a fair enquiry. Accordingly, we allow the appeal and set aside the judgment of the High Court affirming the judgments of the Trial Court and Appellate Court. The suit filed by the respondent shall stand dismissed.
No costs.
Appeal allowed.
18. The rules of natural justices are again supported to crutch of the theory known as useless formulated theory. The detail and criticism of the useless formulated theory has been made very much earlier in natural justice, substance or shadow by Prof. D.H.Clark of Canada contending that Malloch Vs. Aberdeen Corpn: (1971 2 ALL ER 1278, HL) and Glynn were wrongly decided
19. However, in the case of M.C. Mehta Vs. UOI (1999 6 SCC P.237, the Honble Supreme Court in the said case was observed that if in a case where the facts which are not admitted or beyond disputed there is considerable unanimity that the courts can not exercise of their discussion refused or rejecting even though natural justice is not violated. In other words in the case where the remanding of issue back to administration/judicial authorities for non-adherence of principle of natural justice is not to bring outcome it from one available, useless formality of remanding him back may be avoided. In the aforementioned case of M.C, Mehta in view of admitted and any plausible fact that Supreme Court viewed that the granted what will be in vein. The relevant excerpt of the judgment reads as under:
22. What is known as 'useless formality theory' has received consideration of this Court in M.C. Mehta v. Union of India, JT 1999 (5) SC 114 ; 1999 (6) SCC 237. It was observed as under:
"Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those , cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed (See Malloch v. Aberdeen Corpn: (1971) 2 All ER 1278, HL) (per Lord Reid and Lord Wilberforce), Glynn v. Keele University: (1971) 2 All ER 89; Cinnamond v. British Airports Authority: (1980) 2 All ER 368, CA) and other cases where such a view has been held. The latest addition to this view is R v. Eating Magistrates' Court, ex p. Fannaran (1996 (8) Admn. LR 351, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be 'demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMohan (1987 (1) All ER 1118, CA) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant (1959 NZLR 1014) however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is 'real likelihood-not certainty- of prejudice'. On the other hand, Garner Administrative Law says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin (1964 AC 40: (1963) 2 All ER 66, HL), Megarry, J. in John v. Rees ( 1969 (2) All ER 274) stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J has said that the 'useless formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that 'convenience and justice are often not on speaking terms'. More recently, Lord Bingham has deprecated the 'useless formality theory' in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving six reasons (see also his article 'Should Public Law Remedies be Discretionary?" 1991 PL. p.64). A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323), Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn. 1994, pp. 526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma (JT 1996(3) SC 722), Rajendra Singh v. State of M.P. (JT 1996 (7) SC 216) that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. We do not propose to express any opinion on the correctness or otherwise of the 'useless formality theory' and leave the matter for decision in an appropriate case, inasmuch as the case before us, 'admitted and indisputable' facts show that grant of a writ will be in vain as pointed by Chinnappa Reddy, J."
20. Coming to the facts of the present case, the applicant has broadly contended that although he had asked for additional documents through his representation dated 6.1.2009 i.e. information in receipt No.78/90 issued by BDO Bhagwanpur, Distt. Siwan, Bihar, Gazett of India, Extraordinary, Part-II Sec.1, 151 dated 20.9.1976 issued from the Law and Company Affairs, verifications report in respect of Caste certificate of the applicant and the investigation report of the case prepared by the vigilance department, but the said documents were supplied to him which resulting in violation of principle of natural justice. It is also contention of the applicant that the enquiry officer did not complied with the provision of Rule 14 (18) of CCS (CCA) Rules, 1965. However, the applicant is unable to point out any prejudice caused to him on account of non-production of documents mentioned in para 3 of report (at Annexure A-11). Since the letter dated 13.8.2007 written by Distt. Magistrate, Siwan, Bihar, indicating that no caste certificate dated 8.5.1990 had been issued in the name of applicant and issuance of said letter was confirmed by PW-1, it could not be viewed that there was no material available on record before enquiry officer to come to a conclusion that the ST certificate No.36/90 produced by the applicant was fake. Further certifying the caste of applicant as ST was issued vide No.36/90 it is not understood that what object the applicant wanted to achieve by gathering information in respect of reference No.78/1990 issued by BDO, Bhagwanpur, Distt. Siwar, Bihar. The charge against the applicant was that ST certificate dated 08.5.90 produced by him was forged. Whether caste Kharia was considered as Tribunal caste or not, was not the issue to be determined by the enquiry officer. Thus the report of Govt. of Bihar, Gazett of India, Extraordinary, Part-II Sec.1, 151 dated 20.9.1976 were not relevant to be looked into by enquiry officer to arrive at a conclusion on custodians of charge whether the ST certificate was false or not. Moreover, during the personal hearing on 30.3.2009 police authority had given an opportunity to applicant to produce a genuinely issued certificate showing his caste as ST. If the applicant was confident about the Tribal status of his caste he could have very much procured valid caste certificate as per procedure. However, he did not avail the opportunity. When the applicant asked for production of verification report in respect of education certificate, caste certificate made by the police at the time of appointment, he did not indicated the relevance of the same. However, as is indicated by the applicant in his written brief, the enquiry officer had ensured that the verification report of ST caste certificate made by the department has already been supplied to C.O. Proceeding recorded by enquiry officer reproduced as under:-
In this connection, it seems that the department is not custodian of first three additional defence documents and not within the jurisdiction of undersigned. As regards S.No.4 educational certificates and police verification reports are not relevant with this case. Verification report of S.T. Caste Certificate made by the department has already been supplied to C.O. and the case has no relevancy with verification of the educational certificates and police report at the time of appointment.
Vigilance investigation report cannot be made as additional defence document as per provisions of Rules on the subject.
The next date of hearing is fixed on 23.01.09 at 2.30 pm for submission for additional defence documents.
PO&CO accordingly directed to attend the scheduled hearing well in time.
21. Further as can be seen from par 7.1 of the enquiry report the applicant had not produced any witness in his defence. Thus, in a way he waived the plea he could have raised the defend himself charged alleged against him. If not done so, he could not have blame the authorities for non production of documents which he wanted to rely upon in his defence. Such attempt of applicant could have consider only to evolve a technical ground to assail the proceedings before court of law. If procurement of the document demanded by applicant were beyond control of revenue, he could have produced some material or evidence like certificate of some of his family member/examine of village Sarpanch etc.to establish status of his community as Tribal community, however, he did not do so. Thus, it was not denied that he was given opportunity by the appellate authority. While disposing of his appeal, appellate authority specifically viewed that the appellant had fail to produce any notification to show that Nonia-Kharia or kharia had declared as Tribal community. In the absence of production of notification and also in the absence of production of non-ST certificate issued by a authority of Bihar govt. and he fails to show the certificate of any his close relatives, appellate authority viewed that applicant could not be said to be from ST community. The relevant of appellate authority reads as under:-
And whereas it is further observed that the appellant had obtained the job in department under ST category as per provisions of Article 341 & 342 of Constitution of India. As per above Articles, President had issued orders notifying various Caste and Tribes, after consultation with the Governor of the concerned States. The castes so notified are eligible for availing the benefits of above mentioned Articles. Any additional or alteration in the Presidential order amounts to amendment thereto, which can not be done by a simple notification by particular State Govt. The appellant has submitted that he belongs to kharia community which is a clan of Nonia Community, but he had failed to produce any such notification wherein Nonia-Kharia or Kharia has been declared as a Tribe Community, during the inquiry or in his reply, as such it can not be said that Kharia is a notified tribal community. The appellant had not been able to produce any ST certificate issued by an Authority of Delhi Govt. or Bihar Govt. in favour of his any close relative, hence the appellant can not be said to belong to the ST Community, and was thus not eligible for selection under that particular community quota.
And whereas, keeping in mind the provisions of natural justice a personal hearing was also allowed on 30.9.2010 and was given an opportunity to produce a genuinely issued certificate showing his caste as a Scheduled Tribe in his State within 45 days, which he failed to produce within the stipulated period.
22. In order to ascertain of the grievance of charges of procuring employee by producing fake ST community labeled against applicant, what the inquiry authority was required to do was to see whether there was material on record to the fakeness of certificate. Said authority vide its letter dated 30.8.2007 and the statement of PW-1 wherein it was formed that the Dist. Magistrate had sent the letter addressing the same to BDO. There can be no reason to doubt the bonafide of statement of PW-1 and letter of Distt. Magistrate as referred. Citation---
The disciplinary authority is the sole judge to take decision in disciplinary matters and some material on record is sufficient for it to come to a conclusion. The relevant excerpt of said judgment reads as under:-
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 : (1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
However, we find that the applicant intended to defend himself by confirming the letter of DM, Siwan, Bihar dated 30.8.2007 with entries in relevant register. He required such register to be verified to ascertain the fact that if no certificate issued to applicant which certificate was issued by DM, Siwan, Bihar on behalf of BDO, Bhagwanpur, Siwan, Bihar vide BDO No. 78/1990. However, in view of charge against applicant and in view of the fact that the authenticity of ST certificate produced by applicant to secure employment in respondents department is required to ascertain by applicant by referring to entry into relevant register, we consider the useless formality to remit the matter back to enquiry authority. However, as has been SCSLJ 2001 P.399 2003(1) Honble Supreme Court noted that since at no stage of employee provides, both the Single Judge, and Division Bench of High Court were not correct in interpreting regulation 6(18) of the Regulation provided for submissions of written brief by employee before enquiry officer, taking such view Honble Supreme Court had initiated the orders of DB and Singh Judge as far as it related to the question of violation of principle of natural justice and direct to examine the documents by the expert in terms of advised on a Single Judge.
27. It is to be noted that at no stage the employee pleaded prejudice. Both learned single judge and the Division Bench proceeded on the basis that there was no compliance of the requirement of regulation 6(18) and, therefore, prejudice was caused. In view of the finding recorded supra that regulation 6(18) has not been correctly interpreted, the conclusions regarding prejudice are indefensible.
28. It is further to be noted that case of the parties on merits was not considered by learned single judge or the Division Bench. Notwithstanding the fact that there was no consideration of the respective cases, learned single judge directed examination of the documents by the expert.
29. The inevitable result is that the judgment of the Division Bench confirming that of the learned single judge has to be quashed so far as it relates to the question of violation of principles of natural justice. But that is not the end of the matter. There was no consideration of the merits of the case as noted above. It would be in the fitness of things to direct examination of the documents by the expert in terms of learned single judge's order. The employee shall file originals of the documents on which he relies upon, of which copies were placed before the High Court. The appellant-bank shall file originals of the documents on which reliance was placed, if not already done. If the government expert is of the view that documents produced by the employee are forged/fabricated or not authentic the order of dismissal shall stand. If, however, the report of the expert is that the documents produced by the employee are genuine, the order of dismissal has to be vacated. In case the originals, as directed above, are not filed by the employee or the bank, then the High Court shall pass necessary orders, upholding the order of dismissal or setting aside the order of dismissal, as the case may be. No other point shall be considered by the High Court. The matter shall be heard by the Division Bench by restoration of the writ appeal.
30. The appeal is allowed to the extent indicated.
Following the aforementioned judgment of Honble Supreme Court we deem it appropriate to quash and set aside the impugned order. We also noticed that in its order, disciplinary authority noted that the applicant had not made any representation against enquiry report, in the order the appellate authority recording findings that representation of the applicant was very much on record. Such procurement in order of disciplinary authority and appellate authority regarding factual position indicated non-application of mind at their end. In totality the fact and circumstances of the case and following the aforementioned judgment of Honble Supreme Court (supra) we dispose of this OA with the direction to the appellate authority to summon and verify the relevant records/register maintained by District Magistrate, Siwan, Bihar during the year 1990 and to allow the applicant to inspect the same in his presence. Applicant would be allowed to inspect the entry at Sl.No. 78/1990 in the said register. Having allowed the applicant to inspect in the said register in his presence and given him opportunity of personal hearing, the appellate authority would take fresh decision in the matter. It goes without saying that such decision would be communicated to the applicant by way of speaking order. No costs.
( A.K. Bhardwaj ) ( Dr.Veena Chhotray) Member (J) Member (A) rb.