Pati Ram Vs Raj High Court

This writ petition is directed against the order dated 19.07.2001 passed by the Appellate Authority whereby, while dismissing the departmental appeal preferred by the petitioner, the order dated 16.09.1998 passed by the respondent no.2disciplinary authority inflicting the penalty of ‘compulsory retirement from service’ upon the petitioner, has been upheld.

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The relevant facts in brief are that the petitioner, a Class-IV employee, was served upon with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for brevity, “Rules of 1958”) vide memorandum dated 27.01.1987. The inquiry officer, while, did not find the charges no.1, 3 and 4 to be proved, found the charge no.2 to be

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proved against him. The disciplinary authority, vide order impugned dated 16.09.1998, while agreeing with the findings recorded by the inquiry officer, inflicted the punishment of ‘compulsory retirement from service’ upon the petitioner which was unsuccessfully challenged by him by way of a departmental appeal which came to be rejected vide order dated 19.07.2001.

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Assailing the orders, learned counsel for the petitioner made two fold submissions. Firstly, he submitted that he was never furnished with a copy of the inquiry report. Secondly, he submitted that the penalty of compulsory retirement from service is too harsh.

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Elaborating his submissions, learned counsel submitted that despite his request vide letter dated 22.09.1998 (Annexure-7) to the disciplinary authority, he was not supplied with a copy of the inquiry report. He further submits that this aspect was not appreciated and examined by the Appellate Authority. Next, he contends that since, the charges no.1, 3 and 4 were not found to be proved against him, in view of very short duration of absence found to be proved qua the charge no.2, the penalty of compulsory retirement from service is shockingly disproportionate which requires interference by this Court in its writ jurisdiction. He, therefore, prays that the writ petition be allowed, the orders impugned dated 19.07.2001 and dated 16.09.1998 be quashed and set aside or in the alternative, the penalty of compulsory retirement from service be substituted with a lesser penalty.

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Per contra, learned counsel for the respondents, supporting the findings recorded by the disciplinary authority as also by the Appellate Authority, prayed for dismissal of the writ petition.

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Heard. Considered.

The petitioner has been found guilty of charge no.2 which

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reads as under:

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** vkjksi la[;k 2%

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fd mDr Jh ikrhjke tcfd og fnukad 11-1-86 ls 17-3-86 rd dk;kZy;@U;k;ky; eqfUlQ ,oa U;kf;d eftLVªsV] fg.Mksu flVh esa pkSdhnkj ds in ij dk;Zjr@inLFkkfir jgrs gq,] fnukad 15-3-86 dh izkr% ls fnukad 17-3-86 dh izkr% rd fcuk vodk’k Lohd`r djk;s vFkok fcuk lwpuk fn;s vFkok fcuk iwokZuqefr izkIr fd;s vius in pkSdhnkj dh M~;wVh ls tkucw>dj vuqifLFkr jgk rFkk eq[;ky; ls ckgj jgk] ftlds QyLo:i fnukad 16 o 17-3-86 dh njE;kuh jkf= dks dk;kZy;@U;k;ky; eqfUlQ ,oa U;kf;d eftLVªsV] fg.Mksu flVh ds Hkou esa eky[kkuk o utkjr d{kksa esa yxs rkys rksM+dj pksjh dh xEHkhj ?kVuk ?kfVr gqbZ] ftlesa utkjr d{k] eky[kkuk d{k rFkk utkjr d{k esa j[kh nks vkyekfj;ksa ds rkys rksM+dj pksjh dh x;h rFkk Mcy ykWd frtksjh dk rkyk Hkh rksM+us dk pksjksa }kjk vlQy iz;kl fd;k x;kA

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bl pksjh dh ?kVuk esa fuEukafdr eky pksjh x;k%&

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1- udn : 2064@&iSls 70 ek=

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2- nks isu

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3- Mcy ykWd frtksjh o xksnjst vkyekfj;ksa dh pkfc;k¡ ux rhu blds vfrfjDr eky[kkuk oLrq,sa Hkh pksjh x;h] ftudk fooj.k

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i`Fkd ls layXu gSA

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bl izdkj mDr Jh ikrhjke us ?kksj ykijokgh] vuq’kklughurk] drZO;&foeq[krk ,oa nqjkpj.k dk d`R; fd;k tks fd jktLFkku vuSfrd lsok,sa] oxhZdj.k] fu;U=.k ,oa vihy fu;e] 1958 ds vUrxZr n.Muh; vijk/k gSA**

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A perusal of the aforesaid charge reveals that it contained very grave and serious allegations against the petitioner, a watchman, that he remained wilfully absent from 15.03.1986 morning till the morning of 17.03.1986 without information or prior permission and it resulted into theft from the Court premises of the articles mentioned therein. There is a concurrent finding of

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fact by the three authorities that the petitioner failed to offer any plausible explanation for his grave misconduct. Even before this Court, the learned counsel for him submitted no explanation for it. Taking into consideration the nature and gravity of allegations found to be established against the petitioner, the penalty of ‘compulsory retirement from service’ was inflicted which, this Court does not find to be so shockingly disproportionate to its conscience in the facts and circumstances of the case so as to warrant interference in its writ jurisdiction.

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So far as another limb of submission of the learned counsel for the petitioner with regard to non-supply of a copy of the inquiry report is concerned, suffice is to observe that after its receipt by the disciplinary authority, the petitioner was offered an opportunity of personal hearing vide notice dated 24.02.1996 pursuant whereof, he submitted a detailed representation (Annexure-5) with the disciplinary authority wherein, there is not a whisper of averment that he was not supplied with the copy of the inquiry report. His prayer to supply the same after passing of the punishment order is of no assistance to his case as it appears to be an afterthought. A perusal of the order of the appellate authority dated 19.07.2001 does not reveal that the petitioner has raised any such plea before it. In the aforesaid factual scenario, this Court finds no merit in the submission raised by the learned counsel for the petitioner.

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Even otherwise, their Lordships have, in the case of Union of India and Others vs. Bishamber Das Dogra: Civil Appeal No.7087/2002: MANU/SC/0887/2009, after appreciating a catena of judgments including the Constitution Bench judgment in

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the case of Managing Director, ECIL vs. B. Karunakar: (1994) ILLJ 162 SC, held as under:

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“11. It is settled legal position that an order is required to be examined on the touchstone of doctrine of prejudice. A Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar MANU/SC/0237/1994:

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(1994)ILLJ162SC, considered the issue at length and after taking into consideration its earlier judgment in Union of India v. Mohd. Ramzan Khan MANU/SC/0124/1991: (1991)ILLJ29SC, came to the conclusion that furnishing the copy of the enquiry report and consideration of the employee's reply to the same by the disciplinary authority constitute an integral part of the enquiry. The second stage follows the enquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. Thus, it is the right of the employee to get the opportunity to make a representation against the findings in the enquiry report. However, the Court further held that 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. The Court further observed as under:

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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

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the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.... 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.

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In Haryana Financial Corporation v. Kailash Chandra Ahuja MANU/SC/7804/2008: (2008)IIILLJ897SC, this Court applied the law laid down in B. Karunakar case (supra) and observed as under:

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It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of

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punishment cannot automatically be set aside.

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In State Bank of Patiala v. S.K. Sharma MANU/SC/0438/1996: (1996)IILLJ296SC, this Court emphasized on the application of doctrine of prejudice and held that unless it is established that nonfurnishing the copy of the enquiry report to the delinquent employee has caused prejudice to him, the Court shall not interfere with the order of punishment for the reason that in such an eventuality setting aside the order may not be in the interest of justice rather it may be tantamount to negation thereof. This Court held as under:

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Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.

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Similar view had been reiterated in S.K.

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Singh v. Central Bank of India and Ors . MANU/SC/1268/1996:(1997)ILLJ537SC, State of U.P. v. Harendra Arora and Anr. AIR 2001SC2315.

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In Aligarh Muslim University v. Mansoor Ali Khan MANU/SC/0533/2000: AIR2000SC2783, this Court considered the judgment in M.C. Mehta v. Union of India and Ors. MANU/SC/0982/1999: [1999]3SCR1173 wherein it has been held that an order passed in violation of natural justice need not be set aside in exercise of the writ jurisdiction unless it is shown that non-

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observance has caused prejudice to the person concerned for the reason that quashing the order may revive another order which itself is illegal or unjustified. This Court also considered the judgment in S.L. Kapoor v. Jagmohan MANU/SC/0036/1980:

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[1981]1SCR746, wherein it has been held that in a peculiar circumstance observance of the principles of natural justice may merely be an empty formality as if no other conclusion may be possible on admitted or indisputable facts. In such a fact-situation, the order does not require to be quashed if passed in violation of natural justice. The Court came to the conclusion that a person complaining nonobservance of the principles of natural justice must satisfy that some real prejudice has been caused to him for the reason that there is no such thing as a merely technical infringement of natural justice.

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Thus, in view of the above, we are of the considered opinion that in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him.”

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Thus, it was held that mere non-supply of the inquiry report to the delinquent officer would not vitiate the disciplinary proceeding unless he alleges and proves any prejudice on this count.

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Therefore, in the backdrop of aforesaid precedential law, this Court has no hesitation in rejecting the contention of the learned counsel for the petitioner that in absence of supply of inquiry report, the orders of punishment are bad in law especially when, no prejudice on account of its non-supply has been shown.

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Resultantly, this writ petition is dismissed being devoid of merit.

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Pending application(s), if any, also stands disposed of accordingly.

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(MAHENDAR KUMAR GOYAL),J

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DIKSHA/7

Pati Ram v. Raj High Court

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Pati Ram v. Raj High Court

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