As stated above, Annexure – A8 enquiry report and PR
minutes were given to the applicant only along with Annexure – A7 show cause notice after the Government accepted the findings in the enquiry report and provisionally decided to impose a penalty. It is pertinent to note that the enquiry officer and the disciplinary authority in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all, as held in B. Karunakar's Case (supra)
“The findings or recommended punishment by the
enquiry officer are likely to affect the mind of the
disciplinary authority in his concluding the guilt or
penalty to be imposed. The delinquent is, therefore,
entitled to meet the reasoning, controvert the
conclusions reached by the enquiry officer or is entitled
to explain the effect of the evidence recorded. Unless
the copy of the report is supplied to him, he would be in
dark to know the findings, the reasons in support
thereof or nature of the recommendation on penalty. He
would point out all the factual or legal errors committed
by the enquiry officer. He may also persuade the
disciplinary authority that the finding is based on no
evidence or the relevant material evidence was not
considered or overlooked by the enquiry officer in
coming to the conclusions, with a view to persuade the
disciplinary authority to disagree with the enquiry
officer and to consider his innocence of the charge, or
even that the guilt as to the misconduct has not been
established on the evidence on records or disabuse the
initial impression formed in the minds of the
disciplinary authority on consideration of the enquiry
report. Even if the disciplinary authority comes to the
conclusion that charge or charges is/are proved, the case
may not warrant imposition of any, penalty. He may
plead mitigating or extenuating circumstances to impose
no punishment or a lesser punishment. For this purpose
the delinquent needs reasonable opportunity or fair play
in action. The supply of the copy of the report is neither
an empty formality, nor a ritual, but aims to digress the
direction of the disciplinary authority from his
derivative conclusions from the report to the palliative
path of fair consideration. The denial of the supply of
the copy, therefore, causes to the delinquent a grave
prejudice and avoidable injustice which cannot be cured
or mitigated in appeal or at a challenge under Art. 226
of the Constitution or S.19 of the Tribunal Act or other
relevant provisions. Ex post facto opportunity does not
efface the past impression formed by the disciplinary
authority against the delinquent, however, professedly
to be fair to the delinquent. The lurking suspicion
always lingers in the mind of the delinquent that the
disciplinary authority was not objective and he was
treated unfairly. To alleviate such an impression and to
prevent injustice or miscarriage of justice at the
threshold, the disciplinary authority should supply the
copy of the report, consider objectively the records, the
evidence, the report and the explanation offered by the
delinquent and make up his mind on proof of the charge
or the nature of the penalty. The supply of the copy of
the report is thus, a sine qua non for a valid, fair, just
and proper procedure to defend the delinquent himself
effectively and efficaciously. The denial thereof is
offending not only Art.311(2) but also violates Arts. 14
and 21 of the Constitution. {Para 7}
8. The argument on the side of the Government before the
Tribunal that there is no specific rule in the Kerala Police
Departmental Inquiries, Punishment and Appeal Rules to give enquiry report at the stage of drawing up of the same to the delinquent cannot be accepted at all. The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statute, that right being a fundamental and essential part of the natural justice, must be read into every regulation or rules. There is nothing in the rules aforesaid
which excludes the operation of the principle of natural justice
entitling the delinquent to be served with a copy of the enquiry
report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the
unoccupied interstices of the statute/rules or regulations unless there is a clear mandate to the contrary.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (KAT) No. 130 of 2022
JAYACHANDRAN V Vs STATE OF KERALA
PRESENT
MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
MR.JUSTICE MOHAMMED NIAS C.P.
Author: Mohammed Nias.C.P., J.
Dated: 16th day of June, 2022
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