Sunday, 17 July 2016

Whether non supply of copies of deposition amounts to violation of principles of natural justice in departmental enquiry?

 In the decision of the Apex Court in the case of Saroj Kumar Sinha, cited supra, the question of non-supply of the copies of documents, more particularly the statements of witnesses, was considered. Following the decision of the Apex Court in the cases of Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as under :
"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."
"35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10) "10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a  reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.
On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied) "36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12) "12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he  would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
(Emphasis supplied) "37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."
It has been held that reasonable opportunity to meet the charges in an effective manner include supply of copies of the relevant statements of the witnesses and documents to be used against the employee. In the absence of the copies, an employee cannot prepare his defence or cross-examination of witnesses and point out inconsistencies with a view to show that allegations are incredible. It is thus clear that the opportunity to defend is not merely an empty formality, but it has to be an effective opportunity to cross-examine the witnesses and supply of the copies of depositions of the witnesses recorded by the Management so as to enable cross-examination of witnesses is to be  considered the part and parcel of an effective opportunity to defend.
No one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are supplied.
9. In view of the aforesaid law laid down, it has to be held that to extend reasonable and sufficient opportunity to the employee to defend his case, as contemplated by clauses (c) and (d) of sub-rule (2) of Rule 37 of the MEPS Act includes the requirement of supplying the copies of depositions to the employee before cross-examination of witnesses. Once a demand is made for supply of the copies of such depositions, it becomes mandatory to supply it and failure to supply deprives an employee, a right to avail an effective opportunity to defend. No doubt, that the petitioner participated in the enquiry, but had not cross-examined any witnesses examined by the Management on the ground that he was not supplied with the copies of the depositions of witnesses examined by the Management. This has deprived the petitioner reasonable, sufficient or an effective opportunity to defend his case causing serious prejudice and the enquiry conducted stands vitiated on this count. The School Tribunal, has, therefore, committed an error of law in accepting the stand of the Management that there was no provision to supply copies of depositions of the witnesses.
10. The reliance upon sub-rule (4) of Rule 37 of the MEPS Act by Shri De, the learned counsel for the Management, is still completely misplaced. The said requirement is in addition to the requirement of Rule 37(2)(c) and (d) of the MEPS Act, and even if there is compliance of sub-rule (4) of Rule 37, that would not be a substitute to cure the defect which has occurred due to non-supply of the copies of depositions during the course of enquiry. There was complete violation of Rule 37(2)(c) and (d) of the MEPS Act, and hence the defence on the basis of sub-rule (4) of Rule 37 of the MEPS Act would not be of any help to the Management.
11. In view of above, the School Tribunal has committed an error in holding that there was compliance of the principles of natural justice, as the petitioner was on every occasion offered cross-examination of the witnesses. The School Tribunal has ignored the fact that for want of copies of depositions of the witnesses examined by the Management, the petitioner could not avail the opportunity to raise an effective defence. The judgment and order impugned, therefore, cannot be sustained and it will have to be set aside and the appeal filed by the petitioner before the School Tribunal needs to be allowed.
Bombay High Court
Vijaysingh S/O Bhaidas Patil vs Shri Dhanorkar Adhunik Gram ... on 1 October, 2015
Bench: Ravi K. Deshpande
Citation: 2016(3) MHLJ 813

1. This petition takes exception to the judgment and order dated 27-6-2008 passed by the School Tribunal, Amravati, dismissing Appeal No.21 of 2006 challenging the termination of the services of the petitioner as a Junior College Teacher by an order dated 18-7-2006, making the termination effective from 19-7-2006, on the basis of the findings recorded by the Enquiry Committee for the alleged acts of misconduct.
2. Undisputedly, the petitioner was a permanent employee and was working as a Junior College Teacher. On 27-2-2006, the charge-sheet along with the statement of allegations was issued to the petitioner, containing the charges - (i) that he utilized the letter pad of the School and prepared the false salary certificate under the forged signature of the Principal, (ii) that he misbehaved with the superiors,
(iii) that he tampered with the attendance register of the non-teaching employees, (iv) willful negligence in performing duties, (v) remaining absent without obtaining prior permission, (vi) delayed checking and submission of the answer-sheets, (vii) dereliction of duty and misleading the Management, thereby brining it to disrepute, and
(viii) delayed reporting on duty and leaving early without obtaining prior permission. The Enquiry Committee was constituted consisting of three persons, which included one representative of the petitioner-employee. The summary of the proceedings were forwarded to the petitioner on 10-7-2006 and the ultimate order of termination was issued on 18-7-2006. making the termination effective from 19-7-2006.
3. The basic challenge before the School Tribunal was regarding non-supply of the copies of depositions of eight witnesses recorded by the Enquiry Committee, which has resulted in breach of Rule 37(2)(c) and (d) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, "the MEPS Rules"), causing prejudice to petitioner. The petitioner, therefore, could not cross-examine the witnesses and defend the proceedings effectively.
The Management had refused to supply the copies of depositions of wp1200.09.odt the witnesses on the ground that there was no provision under the MEPS Rules for supply of such copies, and in the ultimate proceedings of enquiry forwarded to the petitioner, there contained the depositions of all the witnesses. The School Tribunal has recorded the finding that the petitioner has failed to establish the violation of the said provision.
The School Tribunal has held that the ample opportunity was given to the petitioner to cross-examine the witnesses, but the petitioner had refused to avail such opportunity and hence there was no question of breach of the principles of natural justice.
4. Shri Patil, the learned counsel for the petitioner, has placed reliance upon Rule 37(2)(c) and (d) of the MEPS Rules requiring the Management to provide a reasonable opportunity to the petitioner to defend his case. According to him, the "reasonable opportunity"
includes providing of the copies of depositions of the witnesses examined by the Management in support of the charges. He has further relied upon the decisions of the Apex Court in the cases ofState of Uttar Pradesh and others v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772,Kashinath Dikshita v. Union of India and others, reported in AIR 1986 SC 2218, and The State of Punjab v.
Bhagat Ram, reported in AIR 1974 SC 2335. Shri Patil, the learned counsel, has further urged that the entire enquiry was vitiated on account of breach of natural justice and the net result of it, would be that the petitioner would be entitled to reinstatement in service, as has been held by the Division Bench of this Court in the case of Hamid Khan Nayyar s/o Habib Khan v. Education Officer, Amravati and others, reported in 2004(4) Mh.L.J. 513.
5. Shri De, the learned counsel for the respondent-Management, has disputed the proposition that the "reasonable opportunity" contemplated by Rule 37(2)(c) and (d) of the MPES Rules include the supply of copies of depositions, and submits that there is no such requirement specifically interpreted thereunder, and the Enquiry Committee was, therefore, right in assigning the reason that the MEPS Rules do not provide for supply of copies of depositions. He has heavily placed reliance on sub-rule (4) of Rule 37 of the MEPS Rules and has urged that there was total compliance in forwarding the copies of statements of witnesses along with the entire proceedings to the petitioner. The petitioner was thereafter called upon to furnish his explanation, which he had in fact furnished and, therefore, the question of causing any prejudice to the petitioner does not at all arise.

6. Undisputedly, the Management had examined in all eight witnesses in support of the charges so framed against the petitioner.
The petitioner had not cross-examined any of the witnesses, though he was offered such cross-examination on every occasion. It is also not disputed that during the course of the proceedings when the witnesses were examined, the petitioner submitted an application initially on 25-4-2006 for supply of copies of depositions, which was rejected on 6-5-2006, holding that there was no such provision. The order of rejection recites that after completion of the proceedings, the copies shall be supplied. Again on 6-5-2006, the same request was made, and for the same reasons, it was turned down in writing by the Convener of the Enquiry Committee. Out of eight witnesses examined, the deposition of one witness runs into 22 pages, whereas those of other witnesses run into 3 - 4 pages each. It is an undisputed position that after supply of the copies of depositions of the witnesses examined by the Management, the petitioner was never given an opportunity to cross-examine the witnesses.
7. In view of the aforesaid factual position, the first question, which needs to be considered by this Court, is whether the  requirement of supplying the copies of depositions of the witnesses examined before cross-examination during the course of enquiry to the petitioner is implicit under Rule 37(2)(c) and (d) of the MEPS Rules.
The said provision is reproduced below :
"37. Procedure of inquiry.
(2) (c) The Inquiry Committee shall see that every reasonable opportunity is extended to the employee for defending his case.
(d) (i) The Management shall have the right to lead evidence and the right to cross-examine the witnesses examined on behalf of the employee.
(ii) The employee shall have the right to be heard in person and lead evidence. He shall also have the right to cross-examine the witnesses examined on behalf of the Management.
(iii)Sufficient opportunities shall be given to examine all witnesses notified by both the parties."
In terms of clause (c), the Enquiry Committee has to see that every reasonable opportunity is extended to the employee for defending his case. Sub-clause (ii) of clause (d) states that the employee shall have the right to be heard in person and lead evidence. It further states that the employee shall have the right to cross-examine the witnesses examined on behalf of the Management. Sub-clause (iii) therein states  that sufficient opportunity shall be given to examine all the witnesses notified by both the parties.
8. In the decision of the Apex Court in the case of Saroj Kumar Sinha, cited supra, the question of non-supply of the copies of documents, more particularly the statements of witnesses, was considered. Following the decision of the Apex Court in the cases of Bhagat Ram and Kashinath Dikshita, cited supra, the Court has held as under :
"34. This Court in Kashinath Dikshita v. Union of India, has clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at the preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority."
"35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case, SCC pp. 234-35, para 10) "10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a  reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, a cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself.
On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it." (Emphasis supplied) "36. On an examination of the facts in that case, the submission on behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations: (Kashinath Dikshita case, SCC p.236, para 12) "12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he  would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
(Emphasis supplied) "37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."
It has been held that reasonable opportunity to meet the charges in an effective manner include supply of copies of the relevant statements of the witnesses and documents to be used against the employee. In the absence of the copies, an employee cannot prepare his defence or cross-examination of witnesses and point out inconsistencies with a view to show that allegations are incredible. It is thus clear that the opportunity to defend is not merely an empty formality, but it has to be an effective opportunity to cross-examine the witnesses and supply of the copies of depositions of the witnesses recorded by the Management so as to enable cross-examination of witnesses is to be  considered the part and parcel of an effective opportunity to defend.
No one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are supplied.
9. In view of the aforesaid law laid down, it has to be held that to extend reasonable and sufficient opportunity to the employee to defend his case, as contemplated by clauses (c) and (d) of sub-rule (2) of Rule 37 of the MEPS Act includes the requirement of supplying the copies of depositions to the employee before cross-examination of witnesses. Once a demand is made for supply of the copies of such depositions, it becomes mandatory to supply it and failure to supply deprives an employee, a right to avail an effective opportunity to defend. No doubt, that the petitioner participated in the enquiry, but had not cross-examined any witnesses examined by the Management on the ground that he was not supplied with the copies of the depositions of witnesses examined by the Management. This has deprived the petitioner reasonable, sufficient or an effective opportunity to defend his case causing serious prejudice and the enquiry conducted stands vitiated on this count. The School Tribunal, has, therefore, committed an error of law in accepting the stand of the  Management that there was no provision to supply copies of depositions of the witnesses.
10. The reliance upon sub-rule (4) of Rule 37 of the MEPS Act by Shri De, the learned counsel for the Management, is still completely misplaced. The said requirement is in addition to the requirement of Rule 37(2)(c) and (d) of the MEPS Act, and even if there is compliance of sub-rule (4) of Rule 37, that would not be a substitute to cure the defect which has occurred due to non-supply of the copies of depositions during the course of enquiry. There was complete violation of Rule 37(2)(c) and (d) of the MEPS Act, and hence the defence on the basis of sub-rule (4) of Rule 37 of the MEPS Act would not be of any help to the Management.
11. In view of above, the School Tribunal has committed an error in holding that there was compliance of the principles of natural justice, as the petitioner was on every occasion offered cross-examination of the witnesses. The School Tribunal has ignored the fact that for want of copies of depositions of the witnesses examined by the Management, the petitioner could not avail the opportunity to raise an effective defence. The judgment and order wp1200.09.odt impugned, therefore, cannot be sustained and it will have to be set aside and the appeal filed by the petitioner before the School Tribunal needs to be allowed.
12. The question is about the relief which is to be granted to the petitioner. Obviously, when the entire enquiry is vitiated from the stage of evidence and it is required to be set aside, the Management can continue the enquiry from that stage. The necessary consequence would be to set aside the order of termination and to direct the reinstatement of the petitioner in service. It is not in dispute that the petitioner was placed under suspension during the pendency of the enquiry. In the Division Bench decision of this Court in the case of Hamid Khan Nayyar, cited supra, relied upon Shri Patil, the learned counsel for the petitioner, it has been held that after expiry of the period of 120 days prescribed under Rule 37(2)(f) of the MEPS Rules, the suspension ceases to operate and the employee is deemed to have re-joined his duties without prejudice to the continuance of the enquiry. In view of this, it will be open for the Management to decide as to whether the petitioner is to be again placed under suspension or to be continued under suspension if it proposes to hold an enquiry against him. If the Management proposes to hold an enquiry and to  place or continue the petitioner under suspension, then the petitioner would be entitled to subsistence allowance as per the rules from the date of the order of termination, i.e. from 19-7-2006, till the the petitioner is continued under suspension. The question of back wages to be paid to the petitioner can be left open to be decided by the Management depending upon the outcome of the enquiry.
13. In the result, the petition is allowed. The judgment and order dated 27-6-2008 passed by the School Tribunal, Amravati, in Appeal No.21 of 2006 is hereby quashed and set aside. The said appeal filed by the petitioner is allowed and the following order is passed :
:: O R D E R ::
(1) The order of termination dated 18-7-2006 is hereby quashed and set aside and the petitioner is directed to be reinstated in service with effect from 19-7-2006.
(2) The Management shall decide within a period of one month from today as to whether the petitioner is to be placed under suspension or is required to be permitted to resume the duties.
(3) If the petitioner is placed under suspension, the Management shall pay him subsistence allowance in accordance with the rules from 19-7-2006 till this date within a period of sixty days from today and shall continue to pay the same till the conclusion of the enquiry.
(4) If the Management decides not to place the petitioner under suspension but to permit him to resume his duties, then the subsistence allowance till the date of passing of such order shall be paid to him in accordance with the rules within a period of thirty days from such order. Thereafter the petitioner shall be entitled to regular salary of a Junior College Teacher till the conclusion of the enquiry and the order of punishment, if any, to be passed by the Management.

14. Rule is made absolute in above terms. There shall be no order as to costs.
Judge Lanjewar
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