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Supreme Court of India
The State Of Uttar Pradesh vs Ram Prakash Singh on 23 April, 2025
Author: Dipankar Datta
Bench: Prashant Kumar Mishra, Dipankar Datta
2025 INSC 555 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14724/2024
STATE OF UTTAR PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
PANCHAYATI RAJ, LUCKNOW …APPELLANT
VERSUS
RAM PRAKASH SINGH …RESPONDENT
JUDGMENT
DIPANKAR DATTA, J.
THE CHALLENGE
1. The challenge in this appeal, by special leave, is to a judgment and
order dated 19th October, 20191 of the High Court of Judicature at
Allahabad2. It is laid by the State of Uttar Pradesh, the unsuccessful
writ petitioner3. The impugned order dismissed the writ petition4 of
the appellant, wherein the final order of the Uttar Pradesh State
Signature Not Verified
Digitally signed by
rashmi dhyani pant
Date: 2025.04.23
17:40:08 IST
Reason: 1 impugned order
2
High Court
3
appellant
4
Writ Petition (S/B) No. 28859/2019
1
Public Services Tribunal5 dated 19th November, 2018 was under
challenge. The Tribunal set aside the order of punishment dated 24th
March, 2015 imposing a penalty of Rs. 10.25 lakh along with a 5%
reduction in pension for five years on Ram Prakash Singh6.
FACTUAL MATRIX
2. The facts of the case are of great significance given the key
arguments advanced by the parties. Hence, we find it appropriate to
briefly narrate the events having a bearing on our decision before
proceeding to examine the merits of the rival claims. The vital facts,
as culled out from the records, to decide the appeal are as follows:
I. The respondent was serving as an Assistant Engineer in
District Panchayat, Kushinagar in 2004-2005.
II. According to the appellant, the respondent had engaged in
embezzlement of panchayat funds to the tune of Rs. 2.5 crore
in relation to certain drainage and road construction projects.
In cahoots with the incumbent Junior Engineer, Ram Kripal
Singh, the respondent had created sham work records and
siphoned off panchayat funds.
III. Consequently, in December, 2005, the Commissioner,
Gorakhpur Division7 was appointed to make a preliminary
enquiry. He directed the Technical Audit Cell and Divisional
5
Tribunal
6
Respondent
7
Enquiry Officer2
Technical Examiner to determine the existence and extent offinancial irregularities committed by the respondent.
IV. The Technical Audit Cell submitted the financial audit report
dated 16th January, 2006, which found the respondent to have
verified fake records of work created by the said Ram Kripal,
Junior Engineer. Vide another report dated 23rd February
2006, it was opined that there was a loss of Rs. 30.083 lakh
to the exchequer on account of the misconduct committed by
the respondent and others and that the respondent being
responsible for 35% of the said loss, Rs. 10.25 lakh was the
amount recoverable from him.
V. On 12th April, 2006, the respondent was placed under
suspension in contemplation of disciplinary proceedings.
VI. Respondent was served with a chargesheet dated 24th August,
2006. Five charges were framed against him. The audit
reports dated 16th January, 2006 and 23rd February 2006
constituted the basis for the charges.
VII. A challenge laid by the respondent to the order of suspension
dated 12th April, 2006 before the High Court in its writ
jurisdiction resulted in his reinstatement in service on 24th
November, 2006.
VIII. The documents sought to be relied on by the appellant
against the respondent to drive home the charges were not
supplied to the respondent. Respondent, thus, furnished his
3
reply on 2nd January, 2008 denying the charges against him inaddition to praying for a personal hearing.
IX. The enquiry officer submitted his report of enquiry to the
appellant on 18th February, 2008 holding the respondent
guilty of all the charges.
X. Per the respondent, there was no enquiry at all. No witness
was examined in support of the charges and he was not put
on notice. None proved the documents forming part of the
charge-sheet, which were also not supplied to him. Relying on
the charge-sheet, his reply thereto and the enquiry reports
obtained from Technical Audit Cell, the enquiry officer held
him guilty. Even copy of the enquiry report was not furnished.
XI. Respondent reached the age of superannuation on 2 nd August,
2010.
XII. Almost after two and half years of submission of the enquiry
report by the Enquiry Officer, the respondent received on 2nd
August, 2010 an order dismissing him from service dated 26th
July, 2010 passed by the Principal Secretary to the
Government of Uttar Pradesh, Panchayati Raj Section.
XIII. Apart from being dismissed, a penalty of Rs. 10.52 lakh was
imposed on the respondent.
XIV. Crestfallen with the order of dismissal received by him a
couple of days after the date of superannuation, the
4
respondent challenged such order by lodging a claim8 beforethe Tribunal. The Tribunal, vide judgment and order dated
23rd January, 2014, inter alia, returned findings on perusal of
the enquiry report that no enquiry was conducted by the
Enquiry Officer in accordance with Rule 7(vii) of the U.P.
Government Servants (Discipline and Appeal) Rules, 19999
ordaining that when a charge is denied by the charged officer,
the Enquiry Officer shall proceed to call the witnesses
proposed in the charge-sheet and record their oral evidence in
presence of the charged officer who shall then be given
opportunity to cross-examine the witnesses. Holding that the
order of dismissal could not be sustained based on an
“irregular” enquiry, the Tribunal ordered the appellant to
initiate enquiry proceedings against the respondent from the
stage of submission of reply within three weeks from date of
receipt of the judgment and conclude the same within a
period of an additional three months.
XV. The three-month period stipulated by the Tribunal for
concluding the enquiry expired in April, 2014.
XVI. In the wake of the decision of the Tribunal, the Enquiry Officer
addressed a letter dated 16th May, 2014 to the respondent
extending to him another opportunity to present any
8
Claim Petition No. 1563/2010
9
1999 Rules5
statement or additional evidence within 15 days of receivingsuch letter.
XVII. However, according to the appellant, instead of participating,
the respondent refused to join the enquiry and raised
frivolous grounds to derail the same.
XVIII. Through a letter dated 23rd May 2014, the respondent replied
to the letter dated 16th May, 2014 stating that the time period
stipulated by the Tribunal had expired and no extension of
time having been prayed, the proceedings initiated against
him had lapsed. Respondent also contended that since he had
retired in 2010, no proceedings could be continued against
him.
XIX. Vide his letter dated 05th June, 2014, the Enquiry Officer once
again called upon the respondent to file his additional
reply/explanation.
XX. Respondent vide his letter dated 13th June, 2014 reiterated
that the Enquiry Officer had become functus officio and,
therefore, without any extension of time granted by the
Tribunal, he had no authority to proceed.
XXI. Once again, the Enquiry Officer without recording the oral
evidence of any witness and merely on the basis of the
charge-sheet, reply and the documents gathered during
preliminary enquiry submitted a report of enquiry dated 15th
6
September, 2014, holding the respondent guilty of all thecharges.
XXII. After receiving the sanction of the Governor under Article
351-A, Civil Service Regulations10 on 05th January, 2015
(which was required because the respondent had retired), the
Joint Secretary to the Government of Uttar Pradesh,
Panchayati Raj Section issued a fresh order of punishment on
24th March, 2015 reducing the pension of the respondent by
5% for a period of five years and requiring recovery of Rs.
10.52 lakh from his retiral benefits.
XXIII. Interestingly, the aforesaid order dated 24th March, 2015
though briefly refers to and summarises the enquiry report, it
is clear on perusal thereof that the Enquiry Officer proceeded
to hold the charges against the respondent established only
on the basis of the allegations in the charge-sheet and the
reply of the respondent. There is absolutely no reference to
statement of any witness being recorded or as to who proved
the documents which, in the opinion of the Enquiry Officer,
did support the case of the department that the respondent
had by his acts of omission/commission indulged in draining
the public exchequer in excess of Rs. 2 crore. Further, the
said order is completely silent as to whether the documents
relied on by the Enquiry Officer were at all made over to the
10
CSR
7
respondent. Also, the Principal Secretary quashed the earlier
order of punishment dated 26th July, 2010 and closed the
proceedings ordering fresh punishment, but little did he
realise that such order had been quashed earlier by the
Tribunal vide judgment and order dated 23rd January, 2014;
hence such order did not survive for being quashed.
XXIV. Dissatisfied with the order of punishment dated 24th March,
2015, the respondent once again invoked the jurisdiction of
the Tribunal to assail the order of the appellant by lodging a
fresh claim11. The Tribunal, vide judgment and order dated
12th November, 2018, allowed the claim of the respondent by
setting aside the impugned order dated 24th March, 2015. The
Tribunal noted that, admittedly, copy of the enquiry report
was not supplied to the respondent; hence, the procedure
adopted by the appellant was in the teeth of Rule 9(4) of the
1999 Rules. Further, it found that the enquiry had not been
conducted in terms of the 1999 Rules. Additionally, it was
recorded that the Tribunal on the earlier occasion having
granted three months’ time to conclude the enquiry,
submission of the enquiry report dated 15th September, 2014
and the final order of punishment dated 24th March, 2015
should have been preceded by a permission being sought
from the Tribunal which, unfortunately, the appellant did not
11
Claim Petition No. 471/2016
8
seek. Reliance was placed by the Tribunal on the Full Bench
decision of the High Court in Abhishek Prabhakar Awasthy
v. New India Assurance Co. Ltd.12. It was laid down
therein that if the court stipulates a time for concluding the
proceedings, it will not be open to the employer to disregard
that stipulation and an extension of time must be sought.
Based on such reasons, the order of punishment dated 24th
March, 2015 under challenge was set aside and the
respondent was held entitled to all service benefits that were
stopped in terms thereof. Compliance was directed to be
ensured within a period of three months.
XXV. Aggrieved by the order of the Tribunal, the appellant moved
the High Court in its writ jurisdiction albeit unsuccessfully. The
High Court, vide the impugned order, dismissed the
appellant’s writ petition and upheld the order of the Tribunal.
CONTENTIONS OF THE PARTIES
3. Learned counsel for the appellant, seeking quashing of the impugned
order and the order passed by the Tribunal, vigorously contended
that:
I. Immense gravity of the offence committed by the respondent
was not appreciated either by the High Court or the Tribunal.
Further, the respondent overtly refused to participate in the
12
2013 SCC OnLine All 142679
second round of disciplinary proceedings; hence, therespondent cannot be permitted to take advantage of his own
wrong.
II. This Court in Board of Directors Himachal Pradesh
Transport Corporation v. HC Rahi13, has held that the
principles of natural justice cannot be viewed in a rigid
manner. The application of these principles depends on the
facts and circumstances of each individual case. To sustain
the plea of violation of principles of natural justice, one must
establish how he has been prejudiced by the violation. In the
present case, Respondent was aware of the disciplinary
proceedings, yet, refused to participate in the same. It can be
inferred from the respondent’s actions that he had waived any
right to natural justice.
III. The Tribunal, vide order dt. 23rd January, 2014, in the first
round of litigation, had overruled the respondent’s contention
that the entirety of the disciplinary proceedings should be set
aside. However, the respondent chose to raise the same
issues in his letters dated 23rd May, 2014 and 13th June,
2014.
IV. The second round of enquiry was not a fresh proceeding;
rather, it was a continuation of the disciplinary proceeding
which was initiated in 2006. Additionally, a fresh enquiry can
13
(2008) 11 SCC 50210
be initiated against a retired employee within four years of hisretirement under Regulation 351-A of the CSR. Respondent
retired on 31st July, 2010 and the office order directing
resumption of disciplinary proceedings was passed on 10th
April, 2014, which is well within four years of the respondent’s
retirement. In any event, the Government, vide office order
dated 16th October 2014, granted sanction under Regulation
351A of the CSR to continue the proceedings. In arguendo,
even if the non-supply of enquiry report is a violation of
principles of natural justice, it could not have resulted in
quashing of the proceedings per the Constitution Bench
decision of this Court in Managing Director, ECIL,
Hyderabad v. B. Karunakar14. It was held therein that in
the event that there is a non-supply of the enquiry report, the
courts and tribunals shall cause the enquiry report to be
furnished to the employee and he be given an opportunity to
make his case. If after hearing the parties, the court comes to
a conclusion that the non-supply has made no difference to
the findings and punishment meted out to the charged
employee, the court should not interfere with the punishment
order. It was also held that the court should not mechanically
set aside a punishment order on the ground of non-supply of
enquiry report to the charged employee.
14
(1993) 4 SCC 727
11
V. The correct procedure per B. Karunakar (supra) has notbeen followed by the High Court and, accordingly, the
impugned order ought to be set aside.
4. Per contra, in support of the impugned order and pressing for
dismissal of the appeal, learned counsel for the respondent
assiduously contended that:
I. The appellant has tried to mislead this Court by painting the
present case as an instance of non-cooperation of the
respondent whereas, in actuality, the present case is a
demonstration of flagrant violation of the rules. Further, the
appellant has supressed from this Court the fact that the
second round of disciplinary proceedings were conducted in
breach of the timeline provided by the Tribunal.
II. Rule 7(v) of the 1999 Rules require the disciplinary authority
to provide to the employee, the chargesheet along with the
copy of all documentary evidence mentioned therein. The
appellant has not been able to prove before the Tribunal and
the High Court as well as before this Court that the
documents sought to be relied on in the enquiry were
furnished to him.
III. Moreover, Rule 9(4) of the 1999 Rules mandates that if the
disciplinary authority is of the opinion that punishment is
required to be imposed on the employee, the employee has to
be supplied with the enquiry report and given an opportunity
12
to make a representation. Admittedly, no copy of the enquiryreport was furnished to the respondent and, therefore, he had
no opportunity to represent thereagainst.
IV. Surprisingly, not only copy of the enquiry report dated 15 th
September, 2014 was not furnished to the respondent, even
the copy of such report was neither placed on record before
the Tribunal as well as before this Court.
V. The dictum in B. Karunakar (supra), relied upon, does not
apply to the present facts and circumstances. The appellant
has violated the principles of natural justice as well as the
1999 Rules,
VI. Finally, the Tribunal and the High Court were bound by the
ruling of the Full bench of the High Court in Abhishek
Prabhakar Awasthy (supra) and, therefore, the proceedings
could not have been carried forward beyond April, 2014
without applying for and obtaining permission to proceed.
Having not concluded the enquiry as per the timeline provided
by the Tribunal, the order of punishment dated is non-est in
law and cannot be given effect. The same was, thus, rightly
interdicted by the Tribunal.
IMPUGNED ORDER
5. The High Court took notice of the fact that copy of the enquiry report
had not been furnished to the respondent in the second round of
13
disciplinary proceedings and this action of the appellant is repugnant
to the provisions contained in Rule 9(4) of the Rules. The High Court
held that the Tribunal’s order does not suffer from any infirmity while
holding that the appellant’s order dated 24th March 2015 is illegal on
the ground of non-supply of the enquiry report. The High Court also
noticed the fact that the Tribunal’s order dated 12th November, 2018
directed the appellant to conclude the disciplinary proceedings within
a time-frame and the appellant failed to do so. Prior to the time-
frame expiring, the appellant should have approached the Tribunal
seeking suitable extension. The conclusion of the disciplinary
proceedings beyond the time-frame fixed by the Tribunal is
impermissible in law. That apart, the order of punishment is also
unsustainable as the same was discriminatory. While the co-charged
employee Baliram was let off and not punished, the respondent was
punished for the same act.
6. For the reasons thus assigned, the High Court upheld the order of the
Tribunal.
ISSUES
7. The present case tasks us to decide the following issues: –
(i) Whether, in pursuance of a purported enquiry where there
was none to present the case of the department, no witness
was examined in support of the charges and no document
14
was formally proved, any order of punishment could validlybe made?
(ii) Whether the disciplinary authority was justified in placing
reliance on a report of enquiry prepared by the Enquiry
Officer who had looked into documents which were not
provided to the respondent and had arrived at findings of
guilt only on the basis of the charge-sheet, the reply thereto
of the respondent and such documents?
(iii) Whether failure or omission or neglect of the disciplinary
authority to furnish the enquiry report had the effect of
vitiating the enquiry?
(iv) Whether the enquiry not having been completed within the
time stipulated by the Tribunal in its order dated 23rd
January, 2014, the disciplinary proceedings could have been
continued beyond May, 2014? And
(v) Whether, and if at all, the appellant should be granted one
more opportunity to conclude the enquiry against the
respondent within the time to be stipulated by us?
ANALYSIS
8. The first two issues being related are taken up for consideration
together.
9. There could be no iota of doubt that the enquiry in the present case
was conducted by the Enquiry Officer in clear disregard of the 1999
15
Rules relating to conduct of disciplinary proceedings against the
employees of the appellant.
10. We are at loss to comprehend as to how, after the first round of
litigation before the Tribunal leading to quashing of the order of
dismissal dated 27th July, 2010, the same mistake could be repeated
by the Enquiry officer by not calling for witnesses to record their oral
statements as well as to prove the documents generated in course of
the preliminary enquiry. The procedure followed is plainly
indefensible and, therefore, we hold that the respondent has been
punished by the disciplinary authority without due process being
followed in taking disciplinary action against him.
11. Useful reference can be made to certain decisions of this Court to
show the infirmity in the process of decision making which led to the
order of punishment being passed against the respondent.
12. M/s. Bareilly Electricity Supply Company Limited v. The
Workmen and Others15 is a decision arising from an award under
the Industrial Disputes Act, 1947. Law has been laid down therein as
follows:
“9. … Innumerable statements, letters, balance-sheet, profit and
loss account and other documents called for or otherwise were filed
on behalf of the appellants. It cannot be denied that the mere filing
of any of the aforementioned documents does not amount to proof
of them and unless these are either admitted by the respondents or
proved they do not become evidence in the case.
***
14. … But the application of principle of natural justice does not
imply that what is not evidence can be acted upon. On the other
hand what it means is that no materials can be relied upon to15
(1971) 2 SCC 61716
establish a contested fact which are not spoken to by persons who
are competent to speak about them and are subjected to cross-
examination by the party against whom they are sought to be used.
When a document is produced in a Court or a Tribunal the questions
that naturally arise is, is it a genuine document, what are its
contents and are the statements contained therein true. When the
appellant produced the balance-sheet and profit and loss account of
the company, it does not by its mere production amount to a proof
of it or of the truth of the entries therein. If these entries are
challenged the appellant must prove each of such entries by
producing the books and speaking from the entries made therein. If
a letter or other document is produced to establish some fact which
is relevant to the enquiry the writer must be produced or his
affidavit in respect thereof be filed and opportunity afforded to the
opposite party who challenges this fact. … ”
(emphasis ours)
13. In Roop Singh Negi v. Punjab National Bank and Others16, it
was held that an officer conducting an enquiry has a duty to arrive at
findings in respect of the charges upon taking into consideration the
materials brought on record by the parties. It has also been held
therein that any evidence collected during investigation by an
investigating officer against the accused by itself could not be treated
to be evidence in the disciplinary proceedings.
14. What follows from a conjoint reading of the above two decisions is
and what applies here is that, ‘materials brought on record by the
parties’ (to which consideration in the enquiry ought to be confined)
mean only such materials can be considered which are brought on
record in a manner known to law. Such materials can then be
considered legal evidence, which can be acted upon. Though the
Indian Evidence Act, 1872 is not strictly applicable to departmental
enquiries, which are not judicial proceedings, nevertheless, the
16
(2009) 2 SCC 570
17
principles flowing therefrom can be applied in specific cases.
Evidence tendered by witnesses must be recorded in the presence of
the delinquent employee, he should be given opportunity to cross-
examine the witnesses and no document should be relied on by the
prosecution without giving copy thereof to the delinquent – all these
basic principles of fair play have their root in such Act. In such light,
the documents referred to in the list of documents forming part of
the annexures to the chargesheet, on which the department seeks to
rely in the enquiry, cannot be treated as legal evidence worthy of
forming the basis for a finding of guilt if the contents of such
documents are not spoken to by persons competent to speak about
them. A document does not prove itself. In the enquiry, therefore,
the contents of the relied-on documents have to be proved by
examining a witness having knowledge of the contents of such
document and who can depose as regards its authenticity. In the
present case, no such exercise was undertaken by producing any
witness.
15. We may further refer to the decision of this Court in State of Uttar
Pradesh and Others v. Saroj Kumar Sinha17 where disciplinary
proceedings were drawn up against the respondent, Saroj Kumar
Sinha, under the 1999 Rules itself with which we are concerned.
Paragraphs 26 to 30 and 33 of the said decision being relevant are
quoted below:
17
(2010) 2 SCC 772
18
“26. The first inquiry report is vitiated also on the ground that the
inquiry officers failed to fix any date for the appearance of the
respondent to answer the charges. Rule 7(x) clearly provides as
under:
‘7. (x) Where the charged government servant does not appear on
the date fixed in the inquiry or at any stage of the proceeding in
spite of the service of the notice on him or having knowledge of the
date, the inquiry officer shall proceed with the inquiry ex parte. In
such a case the inquiry officer shall record the statement of
witnesses mentioned in the charge-sheet in absence of the charged
government servant.’
27. A bare perusal of the aforesaid sub-rule shows that when the
respondent had failed to submit the explanation to the charge-sheet
it was incumbent upon the inquiry officer to fix a date for his
appearance in the inquiry. It is only in a case when the government
servant despite notice of the date fixed failed to appear that the
inquiry officer can proceed with the inquiry ex parte. Even in such
circumstances it is incumbent on the inquiry officer to record the
statement of witnesses mentioned in the charge-sheet. Since the
government servant is absent, he would clearly lose the benefit of
cross-examination of the witnesses. But nonetheless in order to
establish the charges the Department is required to produce the
necessary evidence before the inquiry officer. This is so as to avoid
the charge that the inquiry officer has acted as a prosecutor as well
as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the
position of an independent adjudicator. He is not supposed to be a
representative of the department/disciplinary authority/Government.
His function is to examine the evidence presented by the Department,
even in the absence of the delinquent official to see as to whether the
unrebutted evidence is sufficient to hold that the charges are proved.
In the present case the aforesaid procedure has not been observed.
Since no oral evidence has been examined the documents have not
been proved, and could not have been taken into consideration to
conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the
Constitution of India the departmental enquiry had to be conducted in
accordance with the rules of natural justice. It is a basic requirement
of the rules of natural justice that an employee be given a reasonable
opportunity of being heard in any proceedings which may culminate
in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the
government servant it cannot be treated as a casual exercise. The
enquiry proceedings also cannot be conducted with a closed mind.
The inquiry officer has to be wholly unbiased. The rules of natural
justice are required to be observed to ensure not only that justice is
done but is manifestly seen to be done. The object of rules of natural
justice is to ensure that a government servant is treated fairly in
proceedings which may culminate in imposition of punishment
including dismissal/removal from service.
19
***
33. As noticed earlier in the present case not only the respondent has
been denied access to documents sought to be relied upon against
him, but he has been condemned unheard as the inquiry officer failed
to fix any date for conduct of the enquiry. In other words, not a single
witness has been examined in support of the charges levelled against
the respondent. The High Court, therefore, has rightly observed that
the entire proceedings are vitiated having been conducted in
complete violation of the principles of natural justice and total
disregard of fair play. The respondent never had any opportunity at
any stage of the proceedings to offer an explanation against the
allegations made in the charge-sheet.”
(emphasis ours)
16. It appears that the appellant is yet to take lessons despite the
admonition in Saroj Kumar Sinha (supra). The same kind of
omissions and commissions that led to setting aside of the order of
punishment imposed being upheld by this Court were repeated in the
present case.
17. Next, the decision in Nirmala J. Jhala v. State of Gujarat and
Another18 deserves consideration where the concept of preliminary
enquiry being distinct from a regular enquiry was noticed and
discussed. Paragraphs 45 and 51 from such decision read as follows:
“42. A Constitution Bench of this Court in Amalendu Ghosh v. North
Eastern Railway, AIR 1960 SC 992, held that the purpose of holding
a preliminary inquiry in respect of a particular alleged misconduct is
only for the purpose of finding a particular fact and prima facie, to
know as to whether the alleged misconduct has been committed
and on the basis of the findings recorded in preliminary inquiry, no
order of punishment can be passed. It may be used only to take a
view as to whether a regular disciplinary proceeding against the
delinquent is required to be held.
43. Similarly in Champaklal Chimanlal Shah v. Union of India, AIR
1964 SC 1854, a Constitution Bench of this Court while taking a
similar view held that preliminary inquiry should not be confused
with regular inquiry. The preliminary inquiry is not governed by the
provisions of Article 311(2) of the Constitution of India. Preliminary18
(2013) 4 SCC 30120
inquiry may be held ex parte, for it is merely for the satisfaction of
the Government though usually for the sake of fairness, an
explanation may be sought from the government servant even at
such an inquiry. But at that stage, he has no right to be heard as
the inquiry is merely for the satisfaction of the Government as to
whether a regular inquiry must be held. …
***
45. In view of the above, it is evident that the evidence recorded in
preliminary inquiry cannot be used in regular inquiry as the
delinquent is not associated with it, and opportunity to cross-
examine the persons examined in such inquiry is not given. Using
such evidence would be violative of the principles of natural
justice.”
18. Guided by the law declared in the aforesaid decisions, we can safely
conclude that the enquiry conducted by the Enquiry Officer in a
manner not authorised by law could not have formed the basis of the
order of punishment dated 24th March, 2015 imposed on the
respondent. The first two issues are, therefore, answered in the
negative.
19. In view of our answers to the first two issues and the glaring fact of
the report of enquiry not having seen the light of the day, the third
issue may not detain us for long. However, before specifically
answering this issue, we need to deal with the argument of learned
counsel for the appellant that the test of ‘prejudice’ ought to be
applied in this case since the respondent did not participate in the
enquiry and, therefore, there was no obligation for the disciplinary
authority to furnish such report. This argument has necessitated a
study of the law declared in B. Karunakar (supra), in some depth,
to assess how the jurisprudence has developed on the issue of non-
furnishing of the report of enquiry in the light of such decision.
21
20. Multiple decisions have been rendered by different Benches of this
Court where, considering B. Karunakar (supra), views have been
expressed placing the burden of proof on the delinquent employee to
demonstrate the ‘prejudice’ that he has suffered owing to non-
furnishing of the report of enquiry as a pre-requisite to succeed in his
challenge to the order of punishment on the ground of violation of
natural justice, with which we find ourselves in respectful
disagreement. We may be mistaken; but our reading suggests that
the articulation of law in B. Karunakar (supra) has been subject to
varying interpretations, and in some cases the key ruling has been
overlooked so much so that in the process its core principle stands
overshadowed. Though judicial discipline, propriety and decorum
demand that we follow the precedents bearing in mind the rule of
stare decisis, or formulate the issue(s) on which we disagree and
refer the same for consideration by a larger Bench, we propose not
to walk that way since, on other fronts, the violations/breaches in
this case are so obtrusive, as already found, that the respondent is
entitled to grant of relief irrespective of the legal position on the
point, and what we express hereafter on the effect and impact of
non-furnishing of the report of enquiry.
21. A random search for precedents over the past 20 (twenty) years’
reveals that in umpteen decisions in relation to service law (as well
as non-service law disputes), this Court has consistently accepted the
principle of law enunciated in B. Karunakar (supra) that non-
22
furnishing of the report of enquiry to the delinquent employee
constitutes violation of his right to raise an effective defence.
However, in the same breath, it has been observed in such
precedents that even if the report is not furnished in any particular
case, the court seized of the matter must make an independent
examination whether non-furnishing of the report has caused any
prejudice to him. The common thread running through all these
decisions is that quashing of the proceedings does not follow as a
ritual if the claim for obtaining relief is that the report of enquiry has
not been furnished; on the contrary, grant of relief in such a case
must be preceded by a satisfaction to be recorded by the court that
non-furnishing of the report did ‘prejudice’ the delinquent employee
amounting to the due process of law not being followed and thereby
causing a failure of justice; and, for such a finding to be recorded,
‘prejudice’ has to be pleaded and proved. Indeed, an onerous burden
placed on a delinquent employee!
22. In relation to service law disputes, inter alia, the decisions in
Haryana Financial Corporation v. Kailash Chandra Ahuja19;
Union of India v. Bishamber Das Dogra20; Sarva U.P. Gramin
Bank v. Manoj Kumar Sinha21; Union of India v. Alok Kumar22;
Punjab National Bank v. K.K. Verma23, Union of India v. R.P
19
(2008) 9 SCC 31
20
(2009) 13 SCC 102
21
(2010) 3 SCC 556
22
(2010) 5 SCC 349
23
(2010) 13 SCC 494
23
Singh24; SBI v. B.R. Saini25; and Union of India and Others v.
Dilip Paul26 hold the field.
23. This Court has also noticed the decision in B. Karunakar (supra) in a
wide variety of cases raising disputes other than service, largely
focusing on the elucidation of principles of natural justice. Reference
may be made, inter alia, to the decisions in Dharampal Satyapal
Ltd. v. CCE27, Swamy Devi Dayal Hospital & Dental College v.
Union of India28, Vijayakumaran C.P.V. v. Central University of
Kerala29, Mineral Area Development Authority of India & Anr.
v. Steel Authority of India & Anr.30, Securities Exchange Board
of India v. Mega Corporation Limited31, T. Takano v. Securities
and Exchange Board of India and Anr.32, State of U.P. v.
Sudhir Kumar Singh33 and Gorkha Security Services v. Govt.
(NCT of Delhi)34.
24. Lest we be misunderstood, we clarify that our intention is to offer
insights and not to dispute or critique established views. We aim here
to present an alternative perspective on the law declared by the
Constitution Bench in B. Karunakar (supra) analysing the basic
question and the incidental questions that emerged for answers
24
(2014) 7 SCC 340
25
(2018) 11 SCC 83
26
2023 SCC OnLine SC 1423
27
(2015) 8 SCC 519
28
(2014) 13 SCC 506
29
(2020) 12 SCC 426
30
(2024) 10 SCC 257
31
(2023) 12 SCC 802
32
(2022) 8 SCC 162
33
(2021) 19 SCC 706
34
(2014) 9 SCC 105
24
before it, moving away from the prevailing perspective available in
decisions so far rendered by diverse Benches. As different
understandings have emerged, this endeavour may facilitate further
clarification or reconsideration by a relevant Bench, allowing for
potential re-evaluation in future cases which could ultimately lead to
further development and refinement of the law on the topic.
25. We propose to begin the discussion by referring to the decision in
State Bank of Patiala v. S.K. Sharma35, which was rendered by a
coordinate Bench of this Court close on the heels of the decision in
B. Karunakar (supra). Upon consideration thereof, this Court in
S.K. Sharma (supra) held that while applying the rule of audi
alteram partem (the primary principle of natural justice) the
courts/tribunals must always bear in mind the ultimate and
overriding objective underlying the said rule, viz. to ensure a fair
hearing and to ensure that there is no failure of justice. It was also
authoritatively held that:
“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.
35
(1996) 3 SCC 364
25
(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 principle stated
under (4) hereinbelow 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 standpoint of substantial compliance. Be that as it may,
the order passed in violation of such a provision can be set aside
only where such 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 (include the setting aside of the order
of punishment), keeping in mind the approach adopted by the
26
Constitution Bench in B. Karunakar. The ultimate test is always the
same, viz., test of prejudice or the test of fair hearing, as it may be
called. … ”
26. Having regard to the statement of law in S.K. Sharma (supra),
certain questions fall for answers, viz. what would be the effect and
impact of non-furnishing the report of enquiry by the disciplinary
authority to a delinquent employee before he is punished? Does he
have to plead and prove ‘prejudice’? Is it in all or specific
circumstances that the courts would insist on the delinquent
employee to demonstrate ‘prejudice’? Is furnishing of the report of
enquiry merely a procedural step in the disciplinary proceedings or
something more? We may proceed to find the answers to these
questions referring to B. Karunakar (supra).
27. Due to an apparent conflict between the decisions in Kailash
Chander Asthana v. State of U.P.36 and Union of India v. Mohd.
Ramzan Khan37—both delivered by Benches comprising three
Judges—a reference was made to a Constitution Bench for
authoritative resolution. Kailash Chander Asthana (supra) was a
case where the enquiry had been conducted by an Administrative
Tribunal under applicable disciplinary rules. It was held that the
failure to serve a copy of the enquiry report was not material. In
contrast, Mohd. Ramzan Khan (supra) marked a momentous
progress in the jurisprudence on disciplinary proceedings by holding
that a delinquent employee is entitled to receive a copy of the
36
(1988) 3 SCC 600
37
(1991) 1 SCC 588
27
enquiry report before the disciplinary authority decides on the
charges against them. Observing the divergence in these rulings, a
Bench of co-equal strength referred several cases to a Constitution
Bench through an order dated 5th August, 1991, which was decided
in B. Karunakar (supra). Notably, Mohd. Ramzan Khan (supra)
judgment heralded a watershed moment in disciplinary law,
declaring that withholding the enquiry report before the disciplinary
authority’s decision strikes at the very heart of natural justice. It
firmly entrenched the employee’s right to be heard before a final
decision to punish him is taken.
28. The majority opinion in the Constitution Bench decision of B.
Karunakar (supra) was authored by Hon’ble P.B. Sawant, J. The
questions which this Court considered are as under:
“2. The basic question of law which arises in these matters is
whether the report of the enquiry officer/authority who/which is
appointed by the disciplinary authority to hold an enquiry into the
charges against the delinquent employee, is required to be
furnished to the employee to enable him to make proper
representation to the disciplinary authority before such authority
arrives at its own finding with regard to the guilt or otherwise of
the employee and the punishment, if any, to be awarded to him.
This question in turn gives rise to the following incidental
questions:
i. Whether the report should be furnished to the employee even
when the statutory rules laying down the procedure for
holding the disciplinary enquiry are silent on the subject or
are against it?
ii. Whether the report of the enquiry officer is required to be
furnished to the delinquent employee even when the
punishment imposed is other than the major punishment of
dismissal, removal or reduction in rank?
iii. Whether the obligation to furnish the report is only when the
employee asks for the same or whether it exists even
otherwise?
iv. Whether the law laid down in Mohd. Ramzan Khan case will
apply to all establishments — Government and non-
28
Government, public and private sector undertakings?
v. What is the effect of the non-furnishing of the report on the
order of punishment and what relief should be granted to the
employee in such cases?
vi. From what date the law requiring furnishing of the report,
should come into operation?
vii. Since the decision in Mohd. Ramzan Khan case has made the
law laid down there prospective in operation, i.e., applicable
to the orders of punishment passed after November 20, 1990
on which day the said decision was delivered, this question in
turn also raises another question, viz., what was the law
prevailing prior to November 20, 1990?”
(emphasis ours)
29. At paragraph 18 of the judgment, this Court after examining the
decision in Kailash Chander Asthana (supra), Union of India v. E.
Bashyan38 and Mohd. Ramzan Khan (supra) found no conflict
between Kailash Chander Asthana (supra) and the two others.
30. In view of the above, ordinarily, the Constitution Bench might not
have proceeded further; however, it found it necessary to do so in
light of the observations recorded in paragraph 19:
“19. In Mohd. Ramzan Khan case the question squarely fell for
consideration before a Bench of three learned Judges of this Court,
viz., that although on account of the Forty-second Amendment of
the Constitution, it was no longer necessary to issue a notice to
the delinquent employee to show cause against the punishment
proposed and, therefore, to furnish a copy of the enquiry officer’s
report along with the notice to make representation against the
penalty, whether it was still necessary to furnish a copy of the
report to him to enable him to make representation against the
findings recorded against him in the report before the disciplinary
authority took its own decision with regard to the guilt or otherwise
of the employee by taking into consideration the said report. The
Court held that whenever the enquiry officer is other than the
disciplinary authority and the report of the enquiry officer holds the
employee guilty of all or any of the charges with proposal for any
punishment or not, the delinquent employee is entitled to a copy of
the report to enable him to make a representation to the
disciplinary authority against it and the non-furnishing of the
report amounts to a violation of the rules of natural justice.
However, after taking this view, the Court directed that the law38
(1988) 2 SCC 19629
laid down there shall have prospective application and the
punishment which is already imposed shall not be open to
challenge on that ground. Unfortunately, the Court by mistake
allowed all the appeals which were before it and thus set aside the
disciplinary action in every case, by failing to notice that the
actions in those cases were prior to the said decision. This anomaly
was noticed at a later stage but before the final order could be
reviewed and rectified, the present reference was already made, as
stated above, by a Bench of three learned Judges. The anomaly
has thus lent another dimension to the question to be resolved in
the present case.”
(emphasis ours)
31. Hon’ble K. Ramaswamy, J. agreed with the view expressed by
Hon’ble P.B. Sawant, J. on all but one of the points. His Lordship
opined that no mistake was made by the Bench in Mohd. Ramzan
Khan (supra) in granting relief to the employees, even though the
judgment said that the rule requiring the enquiry report to be given
to the employee would apply only in future cases. Importantly, both
Hon’ble Sawant and Hon’ble Ramaswamy, JJ. were on the three-
Judge Bench that decided Mohd. Ramzan Khan (supra). This Court
was aware that several appeals were pending, where high courts
had struck down disciplinary actions just because the enquiry report
was not furnished—relying on Mohd. Ramzan Khan (supra), even
though that ruling was meant to apply only to future cases. Because
of this confusion, the Constitution Bench had to clarify the law to
properly address those pending cases where disciplinary action was
taken before the decision in Mohd. Ramzan Khan (supra) was
rendered. The inconsistency mentioned in paragraph 19 of that
ruling also led to several related legal issues [questions (v), (vi),
and (vii)] that needed settlement.
30
32. Upon a survey of the legal position from the time the Government of
India Act, 193539 was enacted till the 42nd Amendment of the
Constitution of India came into effect, the Constitution Bench had
the occasion to observe as follows:
“24. Since the Government of India Act, 1935 till the Forty-second
Amendment of the Constitution, the Government servant had
always the right to receive the report of the enquiry
officer/authority and to represent against the findings recorded in
it when the enquiry officer/authority was not the disciplinary
authority. This right was however, exercisable by him at the
second stage of the disciplinary proceedings viz., when he was
served with a notice to show cause against the proposed penalty.
The issuance of the notice to show cause against the penalty
necessarily required the furnishing of a copy of the enquiry
officer’s report since, as held by the Courts, the right to show
cause against the penalty also implied the right to represent
against the findings on the charges. This was considered to be an
essential part of the ‘reasonable opportunity’ incorporated earlier
in Section 240(3) of the GOI Act and later in Article 311(2) of the
Constitution as originally enacted. The right to receive the enquiry
officer’s report and to show cause against the findings in the
report was independent of the right to show cause against the
penalty proposed. The two rights came to be confused with each
other because as the law stood prior to the Forty-second
Amendment of the Constitution, the two rights arose
simultaneously only at the stage when a notice to show cause
against the proposed penalty was issued. If the disciplinary
authority after considering the enquiry officer’s report had dropped
the proceedings or had decided to impose a penalty other than
that of dismissal, removal or reduction in rank, there was no
occasion for issuance of the notice to show cause against the
proposed penalty. In that case, the employee had neither the right
to receive the report and represent against the finding of guilt nor
the right to show cause against the proposed penalty. The right to
receive the report and to represent against the findings recorded
in it was thus inextricably connected with the acceptance of the
report by the disciplinary authority and the nature of the penalty
proposed. Since the Forty-second Amendment of the Constitution
dispensed with the issuance of the notice to show cause against
the penalty proposed even if it was dismissal, removal or reduction
in rank, some courts took the view that the Government servant
was deprived of his right to represent against the findings of guilt
as well. The error occurred on account of the failure to distinguish
the two rights which were independent of each other.
25. While the right to represent against the findings in the report
39
GoI Act31
is part of the reasonable opportunity available during the first
stage of the inquiry viz., before the disciplinary authority takes
into consideration the findings in the report, the right to show
cause against the penalty proposed belongs to the second stage
when the disciplinary authority has considered the findings in the
report and has come to the conclusion with regard to the guilt of
the employee and proposes to award penalty on the basis of its
conclusions. The first right is the right to prove innocence. The
second right is to plead for either no penalty or a lesser penalty
although the conclusion regarding the guilt is accepted. It is the
second right exercisable at the second stage which was taken
away by the Forty-second Amendment.
26. The reason why the right to receive the report of the enquiry
officer is considered an essential part of the reasonable
opportunity at the first stage and also a principle of natural justice
is that the findings recorded by the enquiry officer form an
important material before the disciplinary authority which along
with the evidence is taken into consideration by it to come to its
conclusions. It is difficult to say in advance, to what extent the
said findings including the punishment, if any, recommended in
the report would influence the disciplinary authority while drawing
its conclusions. The findings further might have been recorded
without considering the relevant evidence on record, or by
misconstruing it or unsupported by it. If such a finding is to be
one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the
employee should have afair opportunity to meet, explain and
controvert it before he is condemned. It is negation of the tenets
of justice and a denial of fair opportunity to the employee to
consider the findings recorded by a third party like the enquiry
officer without giving the employee an opportunity to reply to it.
Although it is true that the disciplinary authority is supposed to
arrive at its own findings on the basis of the evidence recorded in
the enquiry, it is also equally true that the disciplinary authority
takes into consideration the findings recorded by the enquiry
officer alongwith the evidence on record. In the circumstances,
the findings of the enquiry officer do constitute an important
material before the disciplinary authority which is likely to
influence its conclusions. If the enquiry officer were only to record
the evidence and forward the same to the disciplinary authority,
that would not constitute any additional material before the
disciplinary authority of which the delinquent employee has no
knowledge. However, when the enquiry officer goes further and
records his findings, as stated above, which may or may not be
based on the evidence on record or are contrary to the same or in
ignorance of it, such findings are an additional material unknown
to the employee but are taken into consideration by the
disciplinary authority while arriving at its conclusions. Both the
dictates of the reasonable opportunity as well as the principles of
natural justice, therefore, require that before the disciplinary
authority comes to its own conclusions, the delinquent employee
should have an opportunity to reply to the enquiry officer’s
32
findings. The disciplinary authority is then required to consider the
evidence, the report of the enquiry officer and the representation
of the employee against it.
27. It will thus be seen that where the enquiry officer is other than
the disciplinary authority, the disciplinary proceedings break into
two stages. The first stage ends when the disciplinary authority
arrives at its conclusions on the basis of the evidence, enquiry
officer’s report and the delinquent employee’s reply to it. The
second stage begins when the disciplinary authority decides to
impose penalty on the basis of its conclusions. If the disciplinary
authority decides to drop the disciplinary proceedings, the second
stage is not even reached. The employee’s right to receive the
report is thus, a part of the reasonable opportunity of defending
himself in the first stage of the inquiry. If this right is denied to
him, he is in effect denied the right to defend himself and to prove
his innocence in the disciplinary proceedings.
28. The position in law can also be looked at from a slightly
different angle. Article 311(2) says that the employee shall be
given a ‘reasonable opportunity of being heard in respect of the
charges against him’. The findings on the charges given by a third
person like the enquiry officer, particularly when they are not
borne out by the evidence or are arrived at by overlooking the
evidence or misconstruing it, could themselves constitute new
unwarranted imputations. What is further, when the proviso to the
said Article states that ‘where it is proposed after such inquiry, to
impose upon him any such penalty, such penalty may be imposed
on the basis of the evidence adduced during such inquiry and it
shall not be necessary to give such person any opportunity of
making representation on the penalty proposed’, it in effect
accepts two successive stages of differing scope. Since the penalty
is to be proposed after the inquiry, which inquiry in effect is to be
carried out by the disciplinary authority (the enquiry officer being
only his delegate appointed to hold the inquiry and to assist him),
the employee’s reply to the enquiry officer’s report and
consideration of such reply by the disciplinary authority also
constitute an integral part of such inquiry. The second stage
follows the inquiry 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.
What is dispensed with is the opportunity of making representation
on the penalty proposed and not of opportunity of making
representation on the report of the enquiry officer. The latter right
was always there. But before the Forty-second Amendment of the
Constitution, the point of time at which it was to be exercised had
stood deferred till the second stage viz., the stage of considering
the penalty. Till that time, the conclusions that the disciplinary
authority might have arrived at both with regard to the guilt of the
employee and the penalty to be imposed were only tentative. All
that has happened after the Forty-second Amendment of the
Constitution is to advance the point of time at which the
representation of the employee against the enquiry officer’s report
would be considered. Now, the disciplinary authority has to
33
consider the representation of the employee against the report
before it arrives at its conclusion with regard to his guilt or
innocence of the charges.
(emphasis ours)
33. Resting on the aforesaid reasoning, the answer to the basic question
(majority view) in B. Karunakar (supra) is found in paragraph 29
reading as follows:
“29. Hence it has to be held that when the enquiry officer is not
the disciplinary authority, the delinquent employee has a right to
receive a copy of the enquiry officer’s report before the disciplinary
authority arrives at its conclusions with regard to the guilt or
innocence of the employee with regard to the charges levelled
against him. That right is a part of the employee’s right to defend
himself against the charges levelled against him. A denial of the
enquiry officer’s report before the disciplinary authority takes its
decision on the charges, is a denial of reasonable opportunity to
the employee to prove his innocence and is a breach of the
principles of natural justice.”
(emphasis ours)
34. Hon’ble Ramaswamy, J. answered the basic question as follows:
“61. It is now settled law that the proceedings must be just, fair
and reasonable and negation thereof offends Articles 14 and 21. It
is well-settled law that the principles of natural justice are integral
part of Article 14. No decision prejudicial to a party should be
taken without affording an opportunity or supplying the material
which is the basis for the decision. The enquiry report constitutes
fresh material which has great persuasive force or effect on the
mind of the disciplinary authority. The supply of the report along
with the final order is like a post-mortem certificate with putrefying
odour. The failure to supply copy thereof to the delinquent would
be unfair procedure offending not only Articles 14, 21 and 311(2)
of the Constitution, but also, the principles of natural justice. The
contention on behalf of the Government/management that the
report is not evidence adduced during such enquiry envisaged
under proviso to Article 311(2) is also devoid of substance. It is
settled law that the Evidence Act has no application to the enquiry
conducted during the disciplinary proceedings. The evidence
adduced is not in strict conformity with the Indian Evidence Act,
though the essential principles of fair play envisaged in the
Evidence Act are applicable. What was meant by ‘evidence’ in the34
proviso to Article 311(2) is the totality of the material collected
during the enquiry including the report of the enquiry officer
forming part of that material. Therefore, when reliance is sought to
be placed by the disciplinary authority, on the report of the enquiry
officer for proof of the charge or for imposition of the penalty, then
it is incumbent that the copy thereof should be supplied before
reaching any conclusion either on proof of the charge or the nature
of the penalty to be imposed on the proved charge or on both.”(emphasis ours)
35. The answers to the incidental questions are found in paragraph 30.
A brief summary of the same is as follows:
i. Question (i): it was held that even if the disciplinary rules are
silent on providing the enquiry report to the delinquent
employee or prohibit it—the employee still has a right to get
the enquiry report. Denying the report means denying a fair
chance to defend oneself, which violates natural justice. So,
any rule that prevents giving the report is invalid.
ii. Question (ii): If someone other than the disciplinary authority
conducts the enquiry, the report must be shared with the
employee.
iii. Question (iii): The enquiry report must be given whether or not
the employee asks for it. It is his right, and not asking for it
does not mean he has given up that right.
iv. Question (iv): The law laid down in Mohd. Ramzan Khan
(supra) applies to all employees—Government, private, or
public sector.
v. Question (v): discussed in the next paragraph.
vi. Question (vi): the requirement to provide the enquiry report
would take effect from November 20, 1990—the date of the
decision in Mohd. Ramzan Khan (supra).
vii. Question (vii): The rule requiring the enquiry report to be given
to the employee was established for the first time in Mohd.
Ramzan Khan (supra), i.e., 20th November, 1990 and applies
only to disciplinary orders made after that date; orders passed
before it would be governed by the earlier law, which did not
mandate furnishing the report—even if related cases were still
pending in court.
36. The Constitution Bench’s answer to question (v), referring to the
‘prejudice’ principle, reads:
“[v] The next question to be answered is what is the effect on the
35
order of punishment when the report of the enquiry officer is not
furnished to the employee and what relief should be granted to
him in such cases. The answer to this question has to be relative to
the punishment awarded. When the employee is dismissed or
removed from service and the 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 back-
wages in all cases is to reduce the rules of justice to a mechanical
ritual. The theory of reasonable opportunity and the principles of
natural justice have been evolved to uphold the rule of law and to
assist the individual to vindicate his just rights. They are not
incantations to be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has been caused to
the employee or not on account of the denial to him of the report,
has to be considered on the facts and circumstances of each case.
Where, therefore, even after the furnishing of the report, no
different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty and to
get all the consequential benefits. It amounts to rewarding the
dishonest and the guilty and thus to stretching the concept of
justice to illogical and exasperating limits. It amounts to an
‘unnatural expansion of natural justice’ which in itself is antithetical
to justice.”
(emphasis ours)The Constitution Bench further proceeded to hold that:
“31. Hence, in all cases where the enquiry officer’s report is not
furnished to the delinquent employee in the disciplinary
proceedings, the Courts and Tribunals should cause the copy of the
report to be furnished to the aggrieved employee if he has not
already secured it before coming to the Court/Tribunal and give
the employee an opportunity to show how his or her case was
prejudiced because of the non-supply of the report. If after hearing
the parties, the Court/Tribunal comes to the conclusion that the
non-supply of the report would have made no difference to the
ultimate findings and the punishment given, the Court/Tribunal
should not interfere with the order of punishment. The
Court/Tribunal should not mechanically set aside the order of
punishment on the ground that the report was not furnished as is
regrettably being done at present. The courts should avoid
resorting to short cuts. Since it is the Courts/Tribunals which will
apply their judicial mind to the question and give their reasons for
setting aside or not setting aside the order of punishment, (and
not any internal appellate or revisional authority), there would be
neither a breach of the principles of natural justice nor a denial of
the reasonable opportunity. It is only if the Court/Tribunal finds
that the furnishing of the report would have made a difference to36
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 enquiry from the stage of furnishing him with the
report. The question whether the employee would be entitled to
the back-wages and other benefits from the date of his dismissal
to the date of his reinstatement if ultimately ordered, should
invariably be left to be decided by the authority concerned
according to law, after the culmination of the proceedings and
depending on the final outcome. If the employee succeeds in the
fresh enquiry 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 enquiry from
the stage of furnishing the report and no more, where such fresh
enquiry is held. That will also be the correct position in law.”
(emphasis ours)Ultimately, the Constitution Bench at paragraph 44 observed:
“44. The need to make the law laid down in Mohd. Ramzan Khan
case prospective in operation requires no emphasis. As pointed out
above, in view of the unsettled position of the law on the subject,
the authorities/managements all over the country had proceeded on
the basis that there was no need to furnish a copy of the report of
the enquiry officer to the delinquent employee and innumerable
employees have been punished without giving them the copies of
the reports. In some of the cases, the orders of punishment have
long since become final while other cases are pending in courts at
different stages. In many of the cases, the misconduct has been
grave and in others the denial on the part of the management to
furnish the report would ultimately prove to be no more than a
technical mistake. To reopen all the disciplinary proceedings now
would result in grave prejudice to administration which will far
outweigh the benefit to the employees concerned. Both
administrative reality and public interests do not, therefore, require
that the orders of punishment passed prior to the decision in Mohd.
Ramzan Khan case without furnishing the report of the enquiry
officer should be disturbed and the disciplinary proceedings which37
gave rise to the said orders should be reopened on that account.
Hence we hold as above.”
(emphasis ours)
37. Plain reading of the questions posed and the answers thereto
together with the underlying reasons highlight the Constitution
Bench’s anxiety to safeguard the delinquent employee’s right to
raise a fair defence, especially in cases where the enquiry is
conducted by someone other than the disciplinary authority. This
Court carefully reviewed the legal framework, including Article 311
of the Constitution—both in its original form and as amended by the
42nd Amendment, effective from 1st January, 1977. Notwithstanding
that the law was in a nebulous state at one point of time, the
decision in B. Karunakar (supra) brought clarity and settled the law
without ambiguity.
38. Thus, the right to receive the enquiry report as a fundamental
safeguard in disciplinary proceedings, where such report holds the
charges against the delinquent employee to be established, was
firmly entrenched by the Constitution Bench in the jurisprudence
relating to proceedings initiated for disciplinary action for
misconduct. This valuable right applies uniformly, regardless of who
the employer is (Government, public or private) and regardless of
what the rules governing the service ordain. Even if the rules are
silent or do not require furnishing of the enquiry report, the same
has to be furnished. Additionally, the report must be furnished to
the employee even without a request, as it forms an integral part of
38
ensuring a fair and reasonable opportunity to defend against the
charges. By not furnishing the report, an employer cannot scuttle
the rights of the delinquent employee.
39. Reading the passage from S.K. Sharma (supra) highlighted above
bearing in mind the guidance received from the dicta in B.
Karunakar (supra), one can safely conclude that furnishing of a
report of enquiry though is a procedural step, it is of a mandatory
character. However, such a requirement can be waived by the
delinquent employee, expressly or by conduct, but if on facts he is
found not to have waived his right to receive the report, the theory
of substantial compliance or the test of ‘prejudice’ would not be
applicable.
40. In the decisions of this Court, referred to at the beginning of the
discussion, it is revealed that some of the Benches of this Court
have not invalidated the employers’ acts of withholding the reports
of enquiry on the ground that the delinquent employees have not
been able to demonstrate how they suffered ‘prejudice’ by reason of
the reports not being furnished, notwithstanding that such decisions
of the employers clearly violated the precedential significance of the
Constitution Bench decision in B. Karunakar (supra) while
answering question (i).
41. Application of the test of ‘prejudice’, when the requirement is
mandatory in character and where admittedly the report of enquiry
has not been furnished, goes against the very grain of the answer
39
rendered by the Constitution Bench in B. Karunakar (supra) to the
basic issue that was under consideration before it. It is proposed to
discuss, a little later in this judgment, why the test of ‘prejudice’
may not be made applicable in respect of disciplinary action,
proceedings wherefor have commenced after the decision in B.
Karunakar (supra) was rendered, appreciating the deleterious
effects likely to befall employees who have been punished without
furnishing of the enquiry reports. We consider it reasonable to think
that in every case of failure/omission/neglect to furnish the report of
enquiry, which is an act of the employer certainly in utter disregard
of the ratio decidendi of the decision in B. Karunakar (supra),
calling upon the employer to justify why the judicial mandate of the
Constitution Bench had not been followed could have eased the
situation.
42. Be that as it may, the question that troubles us is this: does the law
laid down while answering incidental questions have the effect of
overriding or prevailing over or modifying the law declared on the
main issue by the Constitution Bench? Questions (v), (vi) and (vii)
framed by the Constitution Bench in B. Karunakar (supra), to our
mind, were necessitated because of the error/anomaly that was
noticed in the ultimate direction in Mohd. Ramzan Khan (supra).
As we read and understand the law laid down in B. Karunakar
(supra), the answers to questions (v), (vi) and (vii) were intended
to have limited application, that is, to matters which were already
40
pending before this Court or before the high courts as on date the
Constitution Bench rendered its decision, where the challenge was
laid to punishment orders passed, both prior to and post November
20, 1990, i.e., the day when Mohd. Rizwan Khan (supra) was
decided. And the answer to question (i), which was to apply
prospectively, was intended to guide decisions in future cases
making it imperative that the employer has to furnish such report to
the delinquent employee, no matter who the employer is, what the
rules say or whether the delinquent employee asks for it. Whatever
be the legal (non)requirement or the factual position, the report has
to be furnished. That is the law. The report has to be furnished
because it is an integral part of natural justice and consideration of
the report behind the back of the delinquent employee would
effectively deprive him of the protective shield of ‘reasonable
opportunity to defend’ the charges. We are anchored in our
conviction that any other interpretation of the Constitution Bench
decision would result in diluting the law declared therein.
43. Interpretation of B. Karunakar (supra), particularly bearing in mind
the shifting trend towards the ‘prejudice’ principle and the insistence
on the pleading and proof of ‘prejudice’, may have unintended
consequences for delinquent employees which have not been
visualized hitherto, therefore, having the potential of rendering the
law laid down by the Constitution Bench a dead letter.
44. To recapitulate, B. Karunakar (supra) has unequivocally held that
41
non-furnishing of the enquiry report would deprive the employee of
the opportunity and disable him to demonstrate before the
disciplinary authority the perversity in such report by filing a
representation. The object that is sought to be achieved by
furnishing of the enquiry report is this. If the report were furnished,
the delinquent employee could persuade the disciplinary authority to
hold that either he is innocent and/or that he does not deserve any
punishment, or may be let off with a minor punishment. Providing a
delinquent employee with an opportunity to respond to the enquiry
report is, thus, a crucial procedural step that must precede
disciplinary action. Failure to do so, such as imposing punishment
without furnishing the report, could severely handicap the
employee’s ability to effectively question or challenge the decision in
an appeal/appropriate proceedings, as he would be unaware of the
materials against him. In such a case, at best, nothing more than a
plain and simple plea can be urged that non-furnishing of the
enquiry report has deprived him of reasonable opportunity to
counter the findings of guilt without, however, he being able to
demonstrate prejudice. It is axiomatic that without reading the
enquiry report, there cannot be an effective and meaningful
challenge to the findings contained therein.
45. That apart, the right to receive the report of enquiry being available
prior to a final decision being taken in the disciplinary proceedings
cannot be postponed by any arbitrary act of the employer in not
42
following the law, which can be or should be validated by the court,
and what was intended to be a pre-decisional opportunity cannot be
made to partake the character of a post-decisional opportunity.
46. Imagine a scenario where the employer seeking to get rid of an
inconvenient employee succeeds in its endeavour and dismisses him
following an enquiry, flawed in itself, by relying on the report of
enquiry without furnishing copy of the same to him. In such an
eventuality, the dismissed employee while approaching a
tribunal/court for redress has to do so without having access to the
materials considered in the report. This is best exemplified by the
present case where the report of enquiry has neither been furnished
to the respondent nor placed on record before all the adjudicatory
fora. In the absence of such access, can the delinquent employee be
expected to demonstrate prejudice suffered by him? We are not
sure how the burden can be discharged by the employee in such a
case. This lack of access to the report would severely hamper the
ability of the employee to demonstrate ‘prejudice’ and to build a
strong case for succeeding in his challenge to the order of
punishment. Besides, the lengthy legal process could be agonizing,
and especially without any earning, may not only lead to financial
strain and diminished resolve but could eventually end up with the
employee abandoning the challenge. Drawing from experience, we
understand how employers take advantage and employ methods to
drag on proceedings for years and thereby ensure that through the
43
process of ‘wear and tear’, the employee (if he has been either
dismissed or removed from service) loses steam and, inevitably,
lacking interest in the challenge effectively gets thrown out of the
legal arena by forces beyond his control.
47. These are vital considerations which, in our considered opinion,
need to engage the mind of every court while deciding to apply the
test of ‘prejudice’. In a battle between the mighty lion and the weak
lamb when the former is in an overpowering position, should the
courts lean in its favour and put the weak to the sword for not
having demonstrated ‘prejudice’ when a brazen violation of the law
declared by the Constitution Bench is brought to its notice? Why
should the mighty not be made answerable as to why the report of
enquiry has not been furnished and to bear whatever consequences
that are bound to follow its failure, omission or neglect in this
behalf? In a society governed by the rule of law and when the
preambular promise is to secure equality and justice for all, the
weak lamb is certainly entitled in law to demand that the ratio
decidendi of B. Karunakar (supra) be followed to the ‘T’. We
regret, reliance placed in some of the decisions primarily on certain
English decisions on whether ‘opportunity would have served any
purpose’, may not be appropriate for acceptance in our service
jurisprudence.
48. Looked at from a different angle, it is unheard of and simply
unacceptable to us that employers could brazenly disregard the law
44
declared by the Constitution Bench and/or act in derogation of
statutory rules, yet, argue that no prejudice was caused to the
dismissed employee by reason of not giving him access to the
enquiry report. If the answer to question (v) given in B. Karunakar
(supra) is to be regarded as the final word, we are left to wonder
whether it would have at all been necessary for the Constitution
Bench to elaborately discuss the law on the subject, stress on the
importance and need for the enquiry report to be furnished to the
delinquent employee and to introduce a new regime with
prospective effect. If the test of ‘prejudice’ were to be given
primordial importance, the Constitution Bench could have, on the
contrary, simply observed that post 20th November, 1990 [the date
on which Mohd. Ramzan Khan (supra) was decided], if in case
report of enquiry in a particular case were not furnished to the
delinquent employee and upon the matter reaching the
tribunal/court for adjudication at a subsequent stage, the employer
is under no obligation to explain why the report has not been
furnished and its action of taking disciplinary action has to be
judged and could be interdicted only in the event the employee, on
the touchstone of ‘prejudice’, were to succeed in proving that he had
been denied reasonable opportunity to defend. The Constitution
Bench’s careful consideration of question (i), viz. the need to furnish
the enquiry report to a delinquent employee before disciplinary
action is taken being an integral part of natural justice, the answer
45
thereto would be rendered redundant if such an approach by the
employers is permitted. Allowing employers to circumvent the law
declared by the Constitution Bench and dilution of such declared law
regarding the necessity, nay imperative, to furnish the enquiry
report by interpretative exercises subsequently undertaken by
Benches of lesser strength without bearing in mind other
Constitution Bench decisions (we propose to refer to them briefly,
immediately after this discussion) on the effect of breach of natural
justice principles and the consequences that could visit an employee
whose service is terminated if the report were not furnished in the
first place is an unfortunate development which undermines the rule
of law.
49. Just as Articles 14, 19 and 21 of the Constitution constitute a
triumvirate of rights of citizens conceived as charters on equality,
freedom and liberty, the trio of decisions of Constitution Benches of
this Court in Union of India v. Tulsiram Patel40, Olga Tellis v.
Bombay Municipal Corporation41 and A.R. Antulay v. R.S.
Nayak42 form the bedrock of natural justice principles being
regarded as part of Article 14 of the Constitution and obviating the
need to demonstrate ‘prejudice’ if a challenge were laid on the
ground of breach of Article 14. In Tulsiram Patel (supra), it was
held that violation of a principle of natural justice is violation of
40
(1985) 3 SCC 398
41
(1985) 3 SCC 545
42
(1988) 2 SCC 602
46
Article 14. The dictum of the three-Judge Bench in S.L. Kapoor v.
Jagmohan43 that non-observance of natural justice is itself
prejudice to any man and proof of prejudice, independently of proof
of denial of natural justice is unnecessary, was approved by the
Constitution Bench in Olga Tellis (supra). No prejudice need be
proved for enforcing the Fundamental Rights is the emphatic
assertion in A.R. Antulay (supra).
50. These Constitution Bench decisions have stood the test of time.
Without being overruled in any subsequent decision, the law
continues to bind all Benches of lesser strength. Equally, it cannot
be gainsaid that with the march of time and the progress made in
the years since then, nuanced or refined approaches to applying
natural justice principles may be necessary and appropriate in
specific cases. There can be no quarrel with this approach. However,
we find it difficult for us to be guided by the decisions insisting on
application of the ‘prejudice’ principle in the wake of the aforesaid
Constitution Bench decisions. Accepting such decisions of lesser
strength would signal re-imposition of the legal regime pre-Mohd.
Ramzan Khan (supra) when the employer was under no obligation
to furnish the enquiry report. We are afraid, this could encourage
mischievous employers to drain out its terminated employee by
ensuring that copy of the enquiry report is not furnished.
51. Thus said, what is the way for reconciling the law laid down in the
43
(1980) 4 SCC 379
47
precedents discussed so far? Attempting to clear the confusion
arising out of different understandings of the ratio decidendi of the
decision in B. Karunakar (supra), we proceed to focus on the
proper course for the tribunal/court to adopt when the issue reaches
it for adjudication. In our opinion, whenever a challenge is mounted
to an order of punishment on, inter alia, the ground that the report
of enquiry has not been furnished, the tribunal/court should require
the employer (Government, public or private) to justify non-
furnishing of such report. This is a course, which again experience
has shown, is seldom followed. If no valid explanation is proffered
and the tribunal/court suspects unfair motives (report has not been
furnished as part of a strategic ploy or to advance an unholy cause
or prompted by extraneous reasons) or carelessness, without much
ado and without insisting for ‘prejudice’ to be demonstrated, the
order of punishment should be set aside and the proceedings
directed to resume from the stage of offering opportunity to the
delinquent employee to respond to the enquiry report. Irrespective
of ‘prejudice’ being demonstrated, no employer or for that matter
anyone should be permitted to steal a march and gain any benefit
by violating the law. In case the tribunal/court is satisfied that real
effort was made by the employer but such effort remained abortive
because the report could not be furnished to the employee for
reason(s) beyond its control, or some other justification is placed on
record, which is acceptable to the tribunal/court, the test of
48
‘prejudice’ is open to be applied but only after ensuring service of a
copy of the enquiry report on the employee. In a case where the
employee either expressly or by his conduct appears to have waived
the requirement of having access to the report, it would be open to
the tribunal/court to deal with the situation as per its discretion.
However, the simplicitor application of the ‘prejudice’ test absent a
query to the employer, as indicated above, in our opinion, would be
in the teeth of the law laid down in B. Karunakar (supra).
52. We now sum up our understanding of the law declared in B.
Karunakar (supra) and answer the four questions delineated in
paragraph 26 (supra) compositely. Reading the declaration of law by
the Constitution Bench regarding the imperative need to furnish the
report of enquiry to the delinquent employee even when: (i) the
relevant statutory rules are silent or against it, (ii) the punishment
to be imposed is other than the punishment referred to in clause (2)
of Article 311 of the Constitution, (iii) the employee does not ask for
it, and (iv) the burden is cast on a private employer too, and the law
requiring furnishing of the report being made to operate
prospectively from the date the decision in Mohd. Ramzan Khan
(supra) was rendered, thereby reinforcing the legal position that
prevailed after the GoI Act was enacted but became unsettled later,
there can be no two opinions that on and from 20th November, 1990
[i.e., when Mohd. Ramzan Khan (supra) was decided] it is the
mandatory requirement of law that the report of enquiry has to be
49
furnished to the delinquent employee. Taking a cue from S. K.
Sharma (supra), we are inclined to the view that the requirement
of furnishing the report of enquiry, though procedural, is of a
mandatory character and the bogey argument of the employer to
apply the test of ‘prejudice’ when the report of enquiry is not
furnished cannot be of any avail to thwart the challenge of the
delinquent employee. Such test could call for application, if from the
facts and circumstances, it can be established that the delinquent
employee waived his right to have the report furnished. Should
satisfactory explanation be not proffered by the employer for its
failure/omission/neglect to furnish the enquiry report, that ought to
be sufficient for invalidating the proceedings and directing
resumption from the stage of furnishing the report. No proof of
prejudice for breach of a statutory rule or the principles of natural
justice and fair play need be proved, unless there is a waiver, either
express or by conduct, to of the right to receive the report. And, it is
only in specific and not in all circumstances that proof of ‘prejudice’
ought to be insisted upon.
53. While concluding our discussion, we repeat what has been observed
earlier. This discourse is intended, not to doubt existing points of
view, but to contribute to the understanding of the law. To prevent
misunderstandings and to provide clarity, we wish to make it clear
that it would be open for all courts, bound by Article 141 of the
Constitution, to decide matters coming up before them on the
50
relevant topic in accordance with what they perceive is the law
declared in B. Karunakar (supra).
54. Turning to the facts of the present appeal, we have noted how the
appellant has conducted itself in proceeding against the respondent.
Res ipsa loquitur. We have noted earlier that the report of enquiry
dated 15th September, 2014 has never seen the light of the day.
55. Relying on the law declared in S.K. Sharma (supra) which, in turn,
relied on B. Karunakar (supra), we hold that prejudice is self-
evident and no proof of prejudice as such is called for in this case.
56. Assuming that ‘prejudice’ has to be additionally shown, such
question at least does not arise here because we are also disabled
from looking into the said report. Much of what has been argued by
learned counsel for the appellant pales into insignificance by reason
of the neglect of the appellant to even place on record before us the
report of enquiry. We draw adverse presumption and hold that there
is a purpose behind withholding the report. The report, if produced,
would have supported the contention of the respondent and hence,
conveniently, it has not been produced before any fora.
57. It would also be beneficial at this juncture to read the rules and
regulations which govern the respondent’s employment with the
appellant. Rule 9 of the 1999 Rules ordains that:
9. Action on Enquiry Report –
(1) ***
(2) ***
(3) ***51
(4) If the disciplinary authority having regard to its findings on all or
any of charges is of the opinion that any penalty specified in Rule 3
should be imposed on the charged Government servant, he shall
give a copy of the enquiry report and his findings recorded under
sub-rule (2) to the charged Government servant and require him to
submit his representation if he so desires, within a reasonable
specified time. The disciplinary authority shall, having regard to all
the relevant records relating to the enquiry and representation of
the charged Government servant, if any, and subject to the
provisions of Rule 16 of these rules, pass a reasoned order imposing
one or more penalties mentioned in Rule 3 of these rules and
communicate the same to the charged Government servant.
(emphasis ours)
58. It is clear, on a bare reading of Rule 9, that the procedure
contemplated therein corresponds to the procedure that was
ordinarily followed in conducting disciplinary proceedings prior to
amendment of Article 311 by the Constitution (42nd Amendment) Act,
1976. As held in paragraph 27 of B. Karunakar (supra), where the
enquiry officer is other than the disciplinary authority, the disciplinary
proceedings break into two stages. The first stage ends when the
disciplinary authority arrives at its conclusions on the basis of the
evidence, enquiry officer’s report and the delinquent employee’s
reply to it with regard to his alleged guilt. The second stage begins
when the disciplinary authority decides to impose penalty on the
basis of its conclusions reached at the first stage. If the disciplinary
authority decides to drop the disciplinary proceedings, the second
stage is not even reached. The employee’s right to receive the report
is, thus, a part of the reasonable opportunity of defending himself in
the first stage of the enquiry. If this right is denied to him, he is in
52
effect denied the right to defend himself and to prove his innocence
in the disciplinary proceedings.
59. In the present case, except that the respondent had not participated
in the second round of enquiry and, hence, the disciplinary authority
was not under obligation to furnish him the enquiry report, no other
worthy explanation is forthcoming as to why such report was not
furnished to the respondent. Assuming arguendo that the respondent
had without justification stayed away from the enquiry, the
disciplinary authority could not have considered the report of the
Enquiry Officer in view of what has been held in paragraph 26 of B.
Karunakar (supra) as well as Rule 9(4) of the 1999 Rules. Also,
since the report of enquiry has been withheld by the appellant at all
three tiers, it is preposterous that he would be in a position to plead
and prove prejudice. No such question does arise here.
60. We, thus, hold while answering the third issue that there has been
blatant disregard by the appellant of not only principles of natural
justice and the judicial command in B. Karunakar (supra) by not
furnishing the enquiry report but also by not following the applicable
statutory rule. The enquiry, therefore, stands wholly vitiated.
61. The fourth issue requires us to consider Abhishek Prabhakar
Awasthi (supra), a decision of the Full Bench of the High Court.
Being a Full Bench decision, obviously the Tribunal as well as the
Division Bench of the High Court was bound thereby. The Full Bench
rendered such decision upon considering, inter alia, the decision of
53
this Court in Union of India and Others v. Satyendra Kumar
Sahai and Another44. We may only notice the answers to the
questions referred to the Full Bench, reading as follows:
“(A) Question No. (a): We hold that if an enquiry is not concluded
within the time which has been fixed by the Court, it is open to the
employer to seek an extension of time by making an appropriate
application to the Court setting out the reasons for the delay in the
conclusion of the enquiry. In such an event, it is for the Court to
consider whether time should be extended, based on the facts and
circumstances of the case. However, where there is a stipulation of
time by the Court, it will not be open to the employer to disregard
that stipulation and an extension of time must be sought;
(B) Question No. (b): The judgment of the Supreme Court in the
case of Suresh Chandra (supra) as well as the judgment of the
Division Bench of this Court in the case of Satyendra Kumar Sahai
(supra) clearly indicate that a mere delay on the part of the
employer in concluding a disciplinary enquiry will not ipso facto
nullify the entire proceedings in every case. The Court which has
fixed a stipulation of time has jurisdiction to extend the time and it
is open to the Court, while exercising that jurisdiction, to consider
whether the delay has been satisfactorily explained. The Court can
suitably extend time for conclusion of the enquiry either in a
proceeding instituted by the employee challenging the enquiry on
the ground that it was not completed within the stipulated period or
even upon an independent application moved by the employer. The
Court has the inherent jurisdiction to grant an extension of time,
the original stipulation of time having been fixed by the Court itself.
Such an extension of time has to be considered in the interests of
justice balancing both the need for expeditious conclusion of the
enquiry in the interests of fairness and an honest administration. In
an appropriate case, it would be open to the Court to extend time
suo motu in order to ensure that a serious charge of misconduct
does not go unpunished leading to a serious detriment to the public
interest. The Court has sufficient powers to grant an extension of
time both before and after the period stipulated by the Court has
come to an end”.
62. While affirming the aforesaid view of the Full Bench, we would like to
provide clarification on certain points not touched by such bench.
First, in view of unseen institutional hurdles that can slow down swift
44
(2005) 12 SCC 355
54
action, it may not always be possible for the disciplinary authority in
each such case where a fixed time has been stipulated by a
tribunal/court to conclude the proceedings to apply and seek
extension of time before expiry of such time although there can be
no gainsaying that applying and obtaining an extension before expiry
is eminently desirable. In exceptional cases, even after expiry of the
stipulated time, such an application can be moved; and, depending
on the cause shown for inability or failure to conclude the
proceedings within the time stipulated and also for not applying for
extension before expiry, the tribunal/court may, in its discretion,
allow or reject the prayer for extension. If the application is rejected,
the proceedings cannot be carried forward unless a superior court,
reversing the order of rejection, permits the disciplinary authority to
so proceed. Secondly, if the delinquent employee objects to
continuation of proceedings beyond the time stipulated, the
disciplinary authority without proceeding further ought to apply for
extension of time and may not go ahead till such time its prayer for
extension is granted on such application. Proceeding despite
objection and without there being an extension could give rise to
apprehensions of bias. Therefore, applying for extension upon halting
the proceedings awaiting order on the application would be an
advisable course of action to balance the interests of both the
employer and the employee. Thirdly, even if the delinquent employee
has not objected to continuation of proceedings beyond the time
55
stipulated by the tribunal/court but before the final order is passed in
the proceedings, the disciplinary authority would be bound to seek
and obtain extension of time. This is for the simple reason that the
sanctity of the orders of tribunals/courts cannot be disrespected by
errant parties. The dignity of the judicial process would be seriously
eroded and there would be nothing left of the rule of law if orders of
tribunals/courts, validly made, are disobeyed and the disobedience is
encouraged by being indulgent. Finally, we hasten to add that if a
tribunal/court stipulates a fixed time by which an enquiry or
proceedings for disciplinary action ought to be concluded coupled
with a rider that, in default, the enquiry/proceedings will stand
lapsed, the disciplinary authority in such a case would cease to have
the jurisdiction to proceed further unless, of course, citing genuine
grounds, a recall of such default clause is sought and obtained to
proceed further in accordance with law.
63. We also hold that continuation of disciplinary proceedings beyond the
time stipulated by a tribunal/court could invite interdiction if no bona
fide attempt is shown to have been made to seek an extension of
time. However, much would depend on the facts of each case and it
may not be possible to lay down a common formula applicable to
each case. In an exceptional case, the tribunal/court would have the
discretion to overlook the laxity and make such direction as it deems
fit in the circumstances.
56
64. The answer to the fourth issue, in view of our discussion, has to be in
favour of the respondent and against the appellant. Without an
extension of time, no order of punishment could have been validly
made and the grievance of the respondent in this behalf is absolutely
legitimate.
65. What survives for decision is now the fifth and final issue.
66. It is clear as day-light that the appellant despite being given an
opportunity to proceed in accordance with law failed to utilise such
opportunity. The respondent has experienced 75 (seventy-five)
summers, and is now in the winter years of his life.
67. There are two decisions of this Court, from which guidance could be
had.
68. In A. Masilamani v. LIC45, this Court held:
“16. It is a settled legal proposition, that once the court sets aside
an order of punishment, on the ground that the enquiry was not
properly conducted, the court cannot reinstate the employee. It
must remit the case concerned to the disciplinary authority for it to
conduct the enquiry from the point that it stood vitiated, and
conclude the same.”
69. The decision of this Court in Allahabad Bank v. Krishna Narayan
Tiwari46 also throws light on the approach to be adopted but in a
more nuanced manner than what was held in A. Masilamani
(supra). Paragraph 8 of the decision reads as follows:
“8. There is no quarrel with the proposition that in cases where the
High Court finds the enquiry to be deficient, either procedurally or
otherwise, the proper course always is to remand the matter back45
(2013) 6 SCC 530
46
(2017) 2 SCC 30857
to the authority concerned to redo the same afresh. That course
could have been followed even in the present case. The matter
could be remanded back to the disciplinary authority or to the
enquiry officer for a proper enquiry and a fresh report and order.
But that course may not have been the only course open in a given
situation. There may be situations where because of a long time-lag
or such other supervening circumstances the writ court considers it
unfair, harsh or otherwise unnecessary to direct a fresh enquiry or
fresh order by the competent authority. That is precisely what the
High Court has done in the case at hand.”
(emphasis ours)
70. Respondent, undoubtedly, was denied a reasonable opportunity to
defend himself in the enquiry by the appellant, as ordained by the
1999 Rules. The manner in which the disciplinary proceedings were
conducted and continued against the respondent did not satisfy the
requirements of ‘due process’. The flaws creeping in such
proceedings have rendered the same wholly illegal. The routine
course of action in a case, such as the present, where an order of
punishment is set aside on grounds of breach of statutory rules and
the charged officer is not acquitted on merits, is to remit the case to
the disciplinary authority and direct resumption from the stage the
proceedings is found to stand vitiated.
71. This, in this case, would mean reverting to the stage of production of
witnesses on behalf of the department. When not a single witness
could be produced for examination in 2010 and 2014, we do not
think that witnesses would now be available to support the charges.
Even otherwise, these proceedings have certain incidents of 2004-05
as the origin. Having regard to the lapse of time since then coupled
with the retirement of the respondent from service in 2010 and,
58
more particularly, when the appellant despite an earlier opportunity
granted by the Tribunal has failed to avail the same by continuing the
enquiry in accordance with law, it would be highly unfair and unjust
to subject the respondent to face the enquiry once again. Gravity of
the offence alleged to have been committed is certainly a vital
consideration; however, repeated opportunities cannot be claimed
without there being overwhelming public interest warranting such
opportunity. No doubt, the respondent was charged with involvement
in a financial scam but a line has to be drawn. Or else, it could be an
unending affair till such time based on a legal and valid report of
enquiry, the disciplinary authority passes an appropriate order. On
facts, we are satisfied that second opportunity was not required to be
given. Also, we have noticed from the materials on record that two of
the respondent’s colleagues (one of them a senior officer) who were
also proceeded against have been practically let off with no
punishment or punishment of stoppage of increments. Thus, we are
satisfied that no useful purpose will be served by reviving the
disciplinary proceedings and in remitting the case to the appellant.
On the contrary, the issue must be given a quietus because the
Tribunal or the High Court did not commit any illegality. We hold that
the Tribunal and the High Court were correct and justified in not
granting one more opportunity to the appellant to resume
proceedings from the stage invalidity in the proceedings was
detected. The impugned order of the High Court, not suffering from
59
any legal infirmity, does not warrant any interference and deserves
to be upheld.
CONCLUSION
72. For the foregoing reasons, we find no merit in this appeal. The same
is, accordingly, dismissed. Interim order stands vacated.
73. The respondent shall be entitled to full retiral benefits from the date
of his superannuation without any sum being deducted. However,
provisional pension received by him may be adjusted with the
arrears. Let the pensionary benefits be computed and the balance
sum of pension together with other retiral benefits be released in
favour of the respondent as early as possible, but positively within
three months from date of receipt of a copy of this judgment and
order. In default, the sum payable to the respondent shall carry
interest @ 6% per annum and the High Court too shall be free to
carry the contempt proceedings forward.
74. Parties shall, however, bear their own costs.
……………………..……J.
(DIPANKAR DATTA)
………………………………………J.
(PRASHANT KUMAR MISHRA)
New Delhi.
April 23, 2025.
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