Madhya Pradesh High Court
Ajit Narayan vs Union Of India on 20 December, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL NO. 195 OF 2023.
AJIT NARAYAN
VS.
UNION OF INDIA AND OTHERS.
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Shri Ajit Narayan- petitioner in person.
Shri Pushpendra Yadav- Deputy Solicitor General with Shri Atul Kumar Pathak-
for the respondent No. 1.
Shri Yogesh Bhatnagar- Advocate for the respondent No. 2.
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JUDGMENT
(Reserved on : 03/12/2024)
(Pronounced on : 20/12/2024)
Per: Hon'ble Shri Justice Vivek Jain.
By way of present appeal challenge is made to order dated
16.01.2023 passed by the learned Single Judge in W.P. No. 10234/2021
whereby the writ petition filed by the appellant/writ petitioner has been
dismissed and the penalty awarded to the appellant/writ petitioner has
been confirmed by the learned Single Judge.
2. The appellant/writ petitioner was working on the post of
Registrar in Maulana Azad National Institute of Technology
(“MANIT” for short) earlier known as Maulana Azad National College
of Technology ( for short “MACT”). The MACT was taken over in the
year 2005 by the Ministry of Home Resources Development,
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Government of India, and converted into a National Institute of
Technology and renamed as MANIT. The appellant/writ petitioner has
admittedly retired from service of MANIT on 30.06.2016 and he
claims to have been appointed as Registrar in MACT in the year 1990.
3. By way of charge-sheet it was alleged against the petitioner/
appellant that he has wrongly shown himself appointed as Registrar of
MANIT, Bhopal, though he did not have the requisite qualification to
be appointed as Registrar. It was further alleged in the charge-sheet that
on the basis of age also, the appellant/writ petitioner was disqualified
to be appointed as Registrar and further while functioning as Registrar
of MANIT, the appellant/writ petitioner intentionally bypassed the
higher authorities and got grade pay of Rs. 10000/- sanctioned to
himself in pay band-IV. This pay fixation was carried out by the
appellant/writ petitioner himself without getting the matter referred to
the higher authorities and on his own got his pay revised to Pay Band-
IV resulting in he getting benefited illegally by drawing higher salary
for which he was not entitled.
4. After departmental enquiry, the final penalty order dated 01.12.
2020 was passed by the Director and the amount of Rs. 21,56,680/-
was directed to be recovered from the appellant/writ petitioner which
was stated to be the order of minor penalty. Appeal against the said
order has been rejected vide Annexure P/4 dated 18.03.2021 on the
ground of it being not maintainable as the penalty order dated
01.12.2020 was issued with the prior approval of the President of India
and for this reason the appeal filed by the appellant/writ petitioner was
held to be not tenable in terms of Rule 22 (i) of the Central Civil
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Services (Classification, Control and Appeal) Rules 1965 (for short
“Rules of 1965”).
5. Being aggrieved, the appellant preferred writ petition and the
learned Single Judge has dismissed the petition on the ground that the
writ court in exercise of writ jurisdiction under Article 226 of the
Constitution of India is not a Court of appeal over the decision of the
authority holding Departmental Enquiry. Learned Single Judge held
that the writ court is concerned with limited issue to determine whether
the enquiry was held by the competent authority and that it is held as
per prescribed procedure or not and whether the rules and principles of
natural justice were followed. The learned Single Judge held that the
writ Court will not re-assess the evidence led in the domestic enquiry
except where the findings are based on no evidence or where the
principles of natural justice or statutory provisions have not been
followed. Therefore, placing reliance on judgments of the Supreme
Court in the case of State Bank of Bikaner and Jaipur vs. Nemi
Cand Nalwaya (2011) 4 SCC 584 so also in the case of Lucknow
Khetriya Gramin Bank and another Vs. Rajendra Singh (2013) 12
SCC 372, learned Single Judge rejected the writ petition. Hence, the
present appeal.
6. The appellant/writ petitioner in person has raised two fold
submissions before this Court by while assailing the orders passed by
the Disciplinary Authority and the order passed by the learned Single
Judge. The first point pressed by the appellant in person was that there
is failure of fair procedure inasmuch as that disciplinary authority did
not call for representation from the appellant/writ petitioner attaching a
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copy of the enquiry report. It was argued by the appellant that he never
received copy of the enquiry report and therefore there is violation of
procedure and failure to provide copy of enquiry report to the appellant
resulted in failure of observance of mandatory provisions of Rule 15 of
Rules of 1965. It was further argued that in terms of the Constitution
Bench judgment of the Supreme court in the case of Managing
Director ECIL Vs. B. Karnukar reported in 1993 (4) SCC 727, the
disciplinary authority is under obligation to supply copy of enquiry
report to a delinquent because it is one of the materials which will be
considered by the disciplinary authority against the delinquent before
passing final penalty order and if the delinquent is not confronted with
the entire material against him, there will not be fair observance of
principles of natural justice. Therefore it is argued that non supply of
enquiry report resulted in prejudice to cause to the appellant/writ
petitioner inasmuch as he could reply to the allegations and findings
against him as contained in the implicatory enquiry report. Therefore,
on the ground of this violation of principle of natural justice, it is
prayed to quash the penalty order. The second ground which was
pressed by appellant/ petitioner in person was that he is a retired
employee and any erroneous payment drawn by a retired employee
cannot be recovered from him. It is contended that the recovery which
has been assessed against the appellant by the disciplinary authority
relates to over payment inasmuch as it was found that the appellant
was not entitled to get salary in the IVth Pay Band with grade pay of
Rs. 10,000/- but only IIIrd Pay Band with grade pay of Rs. 6600/-. It is
argued that the matter being one of over payment by way of erroneous
fixation, therefore, in terms of the judgment of the Supreme court in
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case of Thomas Daniel Vs. State of Kerala reported in 2022 SCC
Online SC 536 so also in terms of Judgment in the case of State Of
Punjab & Ors vs Rafiq Masih reported in 2015(4) SCC 334, the
recovery which has been ordered against the appellant/writ petitioner is
erroneous.
7. Countering the aforesaid submissions made by the appellant in
person, the counsel for the respondents has argued that the enquiry
report was duly supplied to the appellant/writ petitioner. It is contended
that the respondents have filed the entire record of department enquiry
along with document No. 4907/2023 in the present appeal and as per
the letter dated 29.06.2017 as available in the said original record, the
Inquiry Officer forwarded the enquiry report to the Director, MANIT
and a copy thereof was forwarded to the appellant/writ petitioner also
by the Inquiry Officer. It is contended that thereafter a letter dated
05.08.2017 was written by the appellant to the Director, MANIT,
Bhopal and it was contended by the appellant that enquiry has been
concluded in May-2017 however, final action on the enquiry report has
not followed ever since, therefore, the matter may be finalized at the
earliest. Thus by referring to the letter dated 29.06.2017 and letter of
appellant dated 05.08.2017, it is contended that the appellant had duly
received the copy of the enquiry report. It is also vehemently argued
that even if the enquiry report has not been supplied then nothing has
been pleaded in the memo of petition that how the appellant/writ
petitioner was prejudiced by non supply of enquiry report and the
learned counsel relies on judgments of the Supreme Court in the case
of Union Of India & Ors vs Bishamber Das Dogra 2009 (13) SCC
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102 and State Of U.P vs Harendra Arora & Anr. 2001(6) SCC 392
to submit that even if the enquiry report has not been made available to
the delinquent employee then it would not itself vitiate the disciplinary
proceedings unless the delinquent employee establishes the real
prejudice caused to him by non-furnishing of enquiry report, the
penalty order cannot be set-aside. It is further argued that the
judgments of the Supreme Court in the case of Thomas Daniel
(supra) & Rafiq Masih (supra), are not applicable because the said
judgments will be applicable only if the payment was erroneously
made without any misrepresentation or fraud of the employee and there
had been a bonafide mistake on part of the employer in erroneous
fixation of pay scale or payment of benefits to the employees. Here as
the present case relates to dubious activity of the appellant/writ
petitioner himself in getting the higher pay band sanctioned in his own
favour and therefore, the appellant is not entitled to get the benefit of
judgments in the case of Thomas Daniel (supra) & Rafiq Masih
(supra).
8. Countering the aforesaid submissions of counsel for the
respondents, the appellant argued that the letter dated 29.06.2017 and
the enquiry report said to be attached therewith was never served upon
the petitioner because the said letter though is available in the
departmental enquiry record but the said letter as is available in the
record does not evidence any receipt or any proof of dispatch to the
appellant/writ petitioner. It is further argued that even if it is deemed
that the appellant had indeed received the said letter at any point of
time in the past, then the mandate is for the disciplinary authority to
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have sent the enquiry report to the delinquent and call for
representation of the delinquent. If the enquiry report is forwarded by
the Inquiry Officer himself, then it is violation of Rule 15 of Rules of
1965 and therefore it will remain to be a technical violation inasmuch
the disciplinary authority failed to serve enquiry report to the appellant
and service of enquiry report by Inquiry Officer has no value or
meaning.
9. Heard.
10. The appellant has argued that the enquiry report was actually
never served to the petitioner and the letter dated 29.06.2017 was
actually never served upon the appellant. The letter dated 29.06.2017
reads as under:-
“To,
Dr. N. S. Choudhary,
Director,
Maulana Azad National Institute of Technology (MANIT),
Bhopal, (MP) Pin-462003.
Subject: Departmental enquiry against Shri Ajit Narayan, Registrar
(Retd.).
Ref: AB/2016/427 Dated-19.07.2016 & R-17/2017/13 Dated-
11.01.2017.
Sir,
Kindly refer above cited orders for conducting Inquiry in above
mentioned case, I am to submit the following for your information and
further necessary action in the matter:-
1. Inquiry report (In duplicate),
2. Charge sheet folder with written statement of defense & appointment
order of 10 &PO.
3. List of department and defense documents (15no. & 9no.) and copy of
marked documents.
4. PO and CO’s Brief.
5. Daily Order Sheets (1-6) (In duplicate).
6. Statement/ depositions of department and defense witnesses (6 nos.) and
General Examination of CO by IO (in duplicate).
7. Correspondences, related to enquiry.
Sd/-
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(Dr. Yogesh)
Inquiry Authority
11. The appellant/writ petitioner thereafter within a period of about
one month from the said letter written a letter to the Director, MANIT
being the Disciplinary Authority to finalize the action on the enquiry
report. The said letter dated 05.08.2017 reads as under:-
To,
Prof. N. S. Raghuwanshi,
Director,
MANIT Bhopal.
05/08/2017
Subject:- Urgent action on the Inquiry Report in the Departmental
inquiry against Ajit Narayan, Retired Registrar, MANIT, completed
in May, 2017, to enable release of long pending Retiral Benefits.&
other related Dues regarding.
Sir,
I, “Ajit Narayan, retired from the post of Registrar,’MANIT, Bhopal
at the end of June, 2016. A few. days prior to my retirement, l-was
placed under suspension & charge’ sheeted on trumped up chages
at the behest of some disgruntled Faculty members, who were
purportedly annoyed with me for some of my rule based official
actions concerning them taken during my long tenure of 26 years on
the post of Registrar in the Institute.
The Departmental Inquiry conducted against me in ‘the above
matter – concluded in mid- May 2017. However, no-action on the
Inquiry report has followed evér-since. All my Retiral benefits, viz:
Retirement Gratuity, EL encashment, Commutation of Pension,
Release of Transport Allowance,. etc. remain outstanding for
release on. above account.
I have been surviving only on Provisional Pension for the last more
than a year. It has led to tremendous hardship for my family and
held’ up all essential actions necessary on retirement.
You have recently joined as the regular Director of the Institute and
it is hoped that under your stewardship the Institute would function
as per the Official system and attain good academic heights.
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Sincerely. Request you to kindly look into my case & ensure justice
is done early for the welfare of my family.
Looking forward to prompt action under intimation to me &
thanking you:-
Yours sincerely
(AJIT NARAYAN) ‘
RETD. REGISTRAR ,MANIT, BHOPAL,”
“ADDRESS:99,MAIN GREEN PARK,NEAR R.K. UNIVERSITY
BISALPUR ROAD,BAREILLY- 243006,UP,
MOB. Nos: 9713099018/940650665”
12. From a bare perusal of the said letter it is evident that as on
05.8.2016 the appellant/writ petitioner knows that the enquiry has been
completed in mid May 2016 and action on the enquiry report is
pending. The contention of the appellant/writ petitioner that he never
knew about the letter dated 29.06.2017 does not appear to be correct
which is for another reason that in the documents attached to the
petition, a reference is found to some earlier writ petition No.
5080/2018 filed by the present appellant/writ petitioner. We have called
for the record of the said petition and it is found that the said petition
was filed before this Court on 27.02.2018 by the appellant/writ
petitioner and in the said petition the letter dated 29.06.2017 was filed
by the appellant/writ petitioner as Annexure P/3. Thus, it is clear that
the appellant/writ petitioner had already received the letter dated
29.06.2017 at least as on 27.02.2018. In the said writ petition No.
5080/2018 filed by the present appellant/writ petitioner in earlier round
of litigation, a clear avarment was made in para 5.5 as under:-
“5.5. That, after the order passed by the Hon’ble High Court
the petitioner challenge the same before the Supreme Court but
he could not succeeded and the department initiated the enquiry
in which the petitioner has taken part. The departmental enquiry
having been concluded by the enquiry officer in May-2017 andSignature Not Verified
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10the final report was submitted to the competent authority in Jun-
2017. Copy of acknowledge of submission of report is filed
hereby as Annexure P-3.”
14. The aforesaid avarments of para 5.5 in W.P. No. 5080/2018
clearly indicate that the petitioner himself wrote that final report in the
enquiry has been submitted vide letter dated 29.06.2017 and therefore,
the respondents should pass final order. The relief that was sought in
the said writ petition was to direct the respondent No. 2 therein to take
final decision over the enquiry report pending before him. It was not
contended before this Court that the appellant/writ petitioner has not
received copy of the enquiry report. It is natural that once the
appellant/writ petitioner had received copy of letter dated 29-06-2017
which is forwarding letter of enquiry report, then he must have
received copy of the enquiry report also. The averments of para 5.5 of
W.P. No. 5080/2018 clearly contain acknowledgment of the
appellant/writ petitioner of having received the enquiry report. The said
W.P. No. 5080/2018 was disposed of by this court on 07.03.2018 in the
following terms :-
“Jabalpur,Dated: 07.03.2018
Shri Riyaz Mohammed, Advocate for the petitioner.
Heard.
This petition under Article 226 of the Constitution of India has
been filed seeking limited direction that the inquiry has been
completed and the report has been submitted by the Inquiry
Officer vide Annexure P-3, however, final decision has not been
taken by respondent No. 2, therefore, appropriate direction may
be issued to take final decision by them
After hearing learned counsel for the petitioner, in my
considered opinion, prayer as made by petitioner is justified. If
the inquiry is completed then the authority competent is bound
to take a decision as early as possible, however, it is directed
that from the date of production of certified copy of this order,
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11disciplinary proceeding pending against the petitioner, who has
already attained the age of superannuation.
With the aforesaid direction, this petition stands disposed of.”
15. It is noteworthy to mention that the appellant/writ petitioner even
filed contempt petition No. 976/2019 when the final order was not
timely issued by the respondents. Now as an after thought the appellant
has contended that he never received copy of enquiry report which
cannot be accepted and the contentions in this regard deserves to be
rejected and are hereby rejected.
16. Even in the entire memo of W.P. No. 10234/2021 which was
filed against the final penalty order and from which the present writ
appeal arises, no ground was taken in specific terms that the copy of
enquiry report was not received by the writ petitioner and was not sent
to him by the respondents.
17. The appellant/writ petitioner has also raised a hyper technical
objection that even if it is deemed that he received the enquiry report
then the enquiry report should have been sent to him by the
disciplinary authority and the Inquiry Officer having sent the enquiry
report to the appellant is not a complete compliance of Rule 15 of
Rules of 1965.
18. Rule 15 of the Rule of 1965 relate to action on the enquiry
report. Rule 15(2) provides for forwarding copy of enquiry report to
the delinquent.
Rule 15(2) is as under:-
“15. (2) The disciplinary authority shall forward or cause to
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12by the disciplinary authority or where the disciplinary
authority is not the inquiring authority, a copy of the report
of the inquiring authority together with its own tentative
reasons for disagreement, if any, with the findings of
inquiring authority on any article of charge to the
Government servant who shall be required to submit, if he so
desires, his written representation or submission to the
disciplinary authority within fifteen days, irrespective of
whether the report is favourable or not to the Government
servant.”
19. The aforesaid rule 15(2) only contemplates for forwarding or
causing to be forwarded a copy of enquiry report to the delinquent and
if the disciplinary authority disagrees with the findings, then tentative
reasons for disagreement have to be communicated to the delinquent
along with the copy of enquiry report. It does not mandate that only the
disciplinary authority can forward the enquiry report to the delinquent.
20. The appellant had argued that he was never asked to submit
representation to the enquiry report which is not a complete
compliance of Rule 15(2). Such a hyper technical objection, we are
afraid cannot be accepted. In the present case, we have already held
that the appellant had received the enquiry report in 2016-17 itself
while the final penalty order was issued in the year 2020. In the
intervening period he had filed a writ petition and no allegation was made
therein that copy of enquiry report has not been supplied to him. He was
only seeking that final penalty order may be passed on enquriy report if he
has something to say in response to the adverse findings in enquiry report,
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he was always at liberty to make his representation to disciplinary
authority. However, he chose not to make such representation at all.
21. Even in cases where the enquiry report was not at all supplied to
the delinquent, it is consistent view of the Supreme Court that the
delinquent has to show real prejudice. In the case of Bishamber Das
Dogra (supra) Supreme Court has held as under:-
“14. It is settled legal position that an order is required to be examined on the
touchstone of doctrine of prejudice. A Constitution Bench of this Court
in ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25
ATC 704] , considered the issue at length and after taking into consideration its
earlier judgment in Union of India v. Mohd. Ramzan Khan [(1991) 1 SCC 588 :
1991 SCC (L&S) 612 : (1991) 16 ATC 505] , came to the conclusion that (B.
Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704]
, SCC p. 755, para 28) furnishing the copy of the enquiry report and consideration
of the employee’s reply to the same by the disciplinary authority constitute an
integral part of the enquiry.
“28. … The second stage follows the enquiry so carried out and it consists
of the issuance of the notice to show cause against the proposed penalty
and of considering the reply to the notice and deciding upon the penalty.”
Thus, it is the right of the employee to get the opportunity to make a
representation against the findings in the enquiry report.”
15. However, the Court further held that : (B. Karunakar case [(1993) 4 SCC
727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , SCC p. 757, para 30).
“30. (v) … The theory of reasonable opportunity and the principles of
natural justice have been evolved to uphold the rule of law and to assist
the individual to vindicate his just rights.”
The Court further observed as under : (B. Karunakar case [(1993) 4 SCC
727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , SCC pp. 757-58,
paras 30-31)
“30. (v) … 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
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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.
31. … It is only if the court/tribunal finds that the furnishing of the report
would have made a difference to the result in the case that it should set
aside the order of punishment.”
(emphasis added)
16. In Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31 :
(2008) 2 SCC (L&S) 789] this Court applied the law laid down in B. Karunakar
case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] and
observed as under : (SCC pp. 38-39, para 21)“21. … It is also clear that non-supply of report of the inquiry officer is in
the breach of natural justice. But it is equally clear that failure to supply a
report of the inquiry officer to the delinquent employee would not ipso
facto result in the proceedings being declared null and void and the order
of punishment non est and ineffective. It is for the delinquent employee to
plead and prove that non-supply of such report had caused prejudice and
resulted in miscarriage of justice. (emphasis supplied) If he is unable to
satisfy the court on that point, the order of punishment
cannot automatically (emphasis in original) be set aside.”
17. In State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S)
717] this Court emphasised on the application of doctrine of prejudice and held
that unless it is established that non-furnishing the copy of the enquiry report to
the delinquent employee has caused prejudice to him, the Court shall not interfere
with the order of punishment for the reason that in such an eventuality setting
aside the order may not be in the interest of justice rather it may be tantamount to
negation thereof.
18. This Court in S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717]
held as under : (S.K. Sharma case [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] ,
SCC p. 389, para 32)
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“32. … Justice means justice between both the parties. The interests of
justice equally demand that the guilty should be punished and
that technicalities and irregularities which do not occasion failure of
justice are not allowed to defeat the ends of justice. Principles of natural
justice are but the means to achieve the ends of justice. They cannot be
perverted to achieve the very opposite end. That would be a
counterproductive exercise.”
(emphasis added)
Similar view had been reiterated in S.K. Singh v. Central Bank of
India [(1996) 6 SCC 415 : 1997 SCC (L&S) 39] and State of
U.P. v. Harendra Arora [(2001) 6 SCC 392 : 2001 SCC (L&S) 959 : AIR
2001 SC 2319] .
19. In Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2000
SCC (L&S) 965] this Court considered the judgment in M.C. Mehta v. Union of
India [(1999) 6 SCC 237] wherein it has been held that an order passed in
violation of natural justice need not be set aside in exercise of the writ jurisdiction
unless it is shown that non-observance has caused prejudice to the person
concerned for the reason that quashing the order may revive another order which
itself is illegal or unjustified.
20. This Court in Mansoor Ali Khan case [(2000) 7 SCC 529 : 2000 SCC (L&S)
965] also considered the judgment in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379
: AIR 1981 SC 136] wherein it has been held that in a peculiar circumstance
observance of the principles of natural justice may merely be an empty formality
as if no other conclusion may be possible on admitted or indisputable facts. In
such a fact situation, the order does not require to be quashed if passed in
violation of natural justice. The Court came to the conclusion that a person
complaining of non-observance of the principles of natural justice must satisfy
that some real prejudice has been caused to him for the reason that there is no
such thing as a merely technical infringement of natural justice.
21. Thus, in view of the above, we are of the considered opinion that in case the
enquiry report had not been made available to the delinquent employee it would
not ipso facto vitiate the disciplinary proceedings as it would depend upon the
facts and circumstances of the case and the delinquent employee has to establish
that real prejudice has been caused to him by not furnishing the enquiry report to
him.
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22. In the case of Harendra Arora (Supra) the Supreme Court has
held as under:-
12. Thus, from the case of ECIL [(1993) 4 SCC 727 : 1993 SCC
(L&S) 1184 : (1993) 25 ATC 704] it would be plain that in cases covered
by the constitutional mandate i.e. Article 311(2), non-furnishing of
enquiry report would not be fatal to the order of punishment unless
prejudice is shown. If for infraction of a constitutional provision an order
would not be invalid unless prejudice is shown, we fail to understand how
requirement in the statutory rules of furnishing copy of the enquiry report
would stand on a higher footing by laying down that question of
prejudice is not material therein.
13. The matter may be examined from another viewpoint. There may
be cases where there are infractions of statutory provisions, rules and
regulations. Can it be said that every such infraction would make the
consequent action void and/or invalid? The statute may contain certain
substantive provisions, e.g., who is the competent authority to impose a
particular punishment on a particular employee. Such provision must be
strictly complied with as in these cases the theory of substantial
compliance may not be available. For example, where a rule specifically
provides that the delinquent officer shall be given an opportunity to
produce evidence in support of his case after the close of the evidence of
the other side and if no such opportunity is given, it would not be
possible to say that the enquiry was not vitiated. But in respect of many
procedural provisions, it would be possible to apply the theory of
substantial compliance or the test of prejudice, as the case may be. Even
amongst procedural provisions, there may be some provisions of a
fundamental nature which have to be complied with and in whose case
the theory of substantial compliance may not be available, but the
question of prejudice may be material. In respect of procedural
provisions other than of a fundamental nature, the theory of substantial
compliance would be available and in such cases objections on this score
have to be judged on the touchstone of prejudice. The test would be,
whether the delinquent officer had or did not have a fair hearing. In the
case of Russell v. Duke of Norfolk [(1949) 1 All ER 109 (CA)] it was laid
down by the Court of Appeal that the principle of natural justice cannotSignature Not Verified
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17be reduced to any hard-and-fast formulae and the same cannot be put in
a straitjacket as its applicability depends upon the context and the facts
and circumstances of each case.
23. Thus, from a conspectus of the aforesaid decisions and different
provisions of law noticed, we hold that the provision in Rule 55-A of the
Rules for furnishing a copy of enquiry report is a procedural one and of a
mandatory character, but even then a delinquent has to show that he has
been prejudiced by its non-observance and consequently the law laid
down by the Constitution Bench in the case of ECIL [(1993) 4 SCC 727 :
1993 SCC (L&S) 1184 : (1993) 25 ATC 704] to the effect that an order
passed in a disciplinary proceeding cannot ipso facto be quashed merely
because a copy of the enquiry report has not been furnished to the
delinquent officer, but he is obliged to show that by non-furnishing of
such a report he has been prejudiced, would apply even to cases where
there is requirement of furnishing a copy of enquiry report under the
statutory provisions and/or service rules.
23. In the case of State Bank of Patiala & others Vs. S.K. Sharma
reported in 1996(3)SCC 364, the Supreme Court has held as under:-
33.(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 theSignature Not Verified
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18judgment, 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 Constitution
Bench in B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993)
25 ATC 704] . The ultimate test is always the same, viz., test of prejudice or
the test of fair hearing, as it may be called.
24. It is evident from the aforesaid law settled by the Supreme Court
that even in the cases of absolute non supply of the enquiry report, the
delinquent is required to show prejudice. Here in the present case the
report was very much supplied to the appellant/writ petitioner and he
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19
has only raised a hyper technical objection that the disciplinary
authority never asked him to submit representation and therefore he
could not submit representation and for this reason the penalty order
should be interfered with. We are afraid that such a hyper technical
view cannot be taken because if appellant despite having received the
enquiry report, chose not to respond to the adverse findings, in our
considered opinion, no prejudice has been caused to the appellant
because he was having ample opportunity for more than 3 years to
submit representation to the adverse findings, if any, of the Inquiry
Officer recorded against him.
25. In the case of State Bank of Bikaner (supra), the Supreme
Court has held as under:-
“7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the domestic
enquiry, nor interfere on the ground that another view is
possible on the material on record. If the enquiry has been
fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the
reliable nature of the evidence will not be grounds for
interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact
recorded in departmental enquiries, except where such
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a
tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The courts
will however interfere with the findings in disciplinary matters,
if principles of natural justice or statutory regulations have
been violated or if the order is found to be arbitrary,
capricious, mala fide or based on extraneous considerations.
(Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 :
1996 SCC (L&S) 80 : (1996) 32 ATC 44] , Union of India v. G.
Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S)Signature Not Verified
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201806] , Bank of India v. Degala Suryanarayana [(1999) 5 SCC
762 : 1999 SCC (L&S) 1036] and High Court of Judicature at
Bombay v. Shashikant S. Patil [(2000) 1 SCC 416 : 2000 SCC
(L&S) 144] .) “
26. Therefore, the ground raised by the appellant/writ petitioner of
violation of principle of natural justice and non compliance of
mandatory procedure is discarded.
26. So far as the other contention raised regarding the recovery being
bad in law in terms of the judgment of the Supreme Court in the case
of Thomas Daniel (supra) & Rafiq Masih (supra), it was argued that
the recovery is on account of erroneous fixation inasmuch as the
appellant was found entitled to salary in the Pay Band-III with grade
pay Rs. 6600 in place of Pay Band-IV with grade pay of Rs. 10,000/-.
It is argued that he is a retired employee and the recovery from
pensioner is bad in law.
27. In the case of Rafiq Masih (supra) the Supreme Court has held
that the recovery would be inequitable when the excess payment is
detected after a long period of time because it would be almost
impossible for the employee to bear the financial burden of refund of
payment received wrongfully for a long span of time. The Supreme
Court also considered the cases on the anvil that the erroneous payment
was not on account of any misrepresentation, fraud or any overt act of
the employee himself and no participation of the employee in the
mistake committed by the employer in granting undeserved financial
benefits to the employees was involved in the said cases which is duly
considered by the Supreme court in para 2 of the aforesaid judgment
which is as under:-
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21
“2. Another essential factual component in this bunch of
cases is that the respondent employees were not guilty of
furnishing any incorrect information, which had led the
competent authority concerned, to commit the mistake of
making a higher payment to the employees. The payment of
higher dues to the private respondents, in all these cases,
was not on account of any misrepresentation made by them,
nor was it on account of any fraud committed by them. Any
participation of the private respondents, in the mistake
committed by the employer, in extending the undeserved
monetary benefits to the respondent employees, is totally
ruled out. It would, therefore, not be incorrect to record, that
the private respondents, were as innocent as their employers,
in the wrongful determination of their inflated emoluments. ”
28. In the present case the enquiry report has duly brought on record
that it was the appellant himself who was instrumental in sanctioning
of erroneous benefit in his own favour and sanctioning of pay scale to
which he was not entitled and no approval or permission of higher
authorities was taken in this unauthorized act of the appellant carried
out for his own benefit. The allegation was clearly an act of
misconduct and it was duly proved also in the enquiry. Thus, it was an
act of misconduct and the judgment of the Supreme Court in the case
of Rafiq Masih (supra) would not come to the rescue of the appellant.
29. So far as the reliance on the case of Thomas Daniel (supra) is
concerned, in the aforesaid case also the Supreme Court clearly
considered that the said case does not involve any misrepresentation or
fraud by the employee in receiving the excess amount and it was a
excess payment resulting from a mistake in interpretation of service
rules which was subsequently pointed out by the Accountant General.
Thus, the said judgment is also on account of the position that there
should not be any misrepresentation, fraud or participation of the
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22
employee in getting the erroneous benefit. The present case in hand is
not one of such case and in the enquiry it has been established that the
erroneous payment to the appellant was made on account of overt act
of the appellant himself in his favour to get unauthorized benefit.
30. Therefore, the appellant is not entitled to get the recovery set-
aside on the anvil of Thomas Daniel (supra) & Rafiq Masih (supra),
also.
31. In the result, for the reasons stated above, we find no error in the
judgment of the learned Single Judge, the writ appeal being devoid of
merits, stands dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIF JUSTICE JUDGE
MISHRA
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