In departmental enquiry, whose statement will carry more weightage, either the delinquent or the Inquiry officer?

 The main ground on which the respondent attacked the order dated September 16, 1954, was that at the enquiry held by Mr. Byrne, he was not given an opportunity to cross-examine the witnesses, who deposed against him, and that the findings reached at such enquiry could not be accepted. But the question is whether that allegation has been made out. In para. 7 of his petition, the respondent stated :

"Despite repeated verbal requests of the petitioner, the Inquiry Officer did not permit him to cross-examine any witness, who deposed against him." {Para 7}

8. But this was contradicted by Mr. Byrne, who filed a counter-affidavit, in which he stated :

"(4) That it is incorrect that no opportunity was given to the petitioner at the time of the oral enquiry to cross-examine the witnesses who had deposed against the petitioner.

(5) That all witnesses were examined in petitioner's presence and he was asked by me at the end of each examination whether he had any questions to put.

(6) That the petitioner only put questions to one witness Shri P. Govindan Nair, and to others he did not."

9. On this affidavit, Mr. Byrne was examined in Court, and he repeated these allegations and added :

"I have distinct recollection that I asked Shri T.R. Varma to put questions in cross-examination to witnesses."

10. It was elicited in the course of his further examination that he did not make any note that he asked Shri T.R. Varma to put questions in cross-examination to witnesses, and that that might have been due to a slip on his part.

11. We have thus before us two statements, one by Mr. Byrne and the other by the respondent, and they are in flat contradiction of each other. The question is which of them is to be accepted. When there is a dispute as to what happened before a court or tribunal, the statement of the Presiding Officer in regard to it is generally taken to be correct, and there is no reason why the statement of Mr. Byrne should not be accepted as true. He was admittedly an officer holding a high position, and it is not suggested that there was any motive for him to give false evidence. There are moreover, features in the record, which clearly show that the statement of Mr. Byrne must be correct. The examination of witnesses began on April 20, 1953, and four witnesses were examined on that date, among them being Sri C.B. Tawakley. If, as stated by the respondent, he asked for permission to cross-examine witnesses, and that was refused, it is surprising that he should not have put the complaint in writing on the subsequent dates on which the enquiry was continued. To one of the witnesses Sri P. Govindan Nair, he did actually put a question in cross-examination, and it is difficult to reconcile this with his statement that permission had been refused to cross-examine the previous witnesses. A reading of the deposition of the witnesses shows that the Enquiring Officer himself had put searching questions, and elicited all relevant facts. It is not suggested that there was any specific matter in respect of which cross-examination could have been but was not directed. We think it likely that the respondent did not cross-examine the witnesses because there was nothing left for him to cross-examine. The learned Judges gave two reasons for accepting the statement of the respondent in preference to that of Mr. Byrne. One is that there was no record made in the depositions of the witnesses that there was no cross-examination. But what follows from this ? That, in fact, there was no cross-examination, which is a fact; not that the request of the respondent to cross-examine was disallowed. Then again, the learned Judges say that the respondent was present at the hearing of the writ petition before them, that they put questions to him, and formed the opinion that he was sufficiently intelligent, and that it was difficult to believe that he would not have cross-examined the witnesses. We are of opinion that this was a consideration which ought not to have been taken into account in a judicial determination of the question, and that it should have been wholly excluded. On a consideration of the record and of the probabilities, we accept the statement of Mr. Byrne as true, and hold that the respondent was not refused permission to cross-examine the witnesses, and that the charge that the enquiry was defective for this reason cannot be sustained.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 118 of 1957

Decided On: 18.09.1957

Union of India (UOI) Vs. T.R. Varma

Hon'ble Judges/Coram:

Sudhi Ranjan Das, C.J., B.P. Sinha, J.L. Kapur, A.K. Sarkar and T.L. Venkatarama Aiyyar, JJ.

Author: T.L. Venkatarama Aiyyar, J.

Citation: MANU/SC/0121/1957,1957 AIR 882, 1958 SCR 499

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Whether the employer can hold an employee guilty for sexual harassment in departmental enquiry despite the pendency of criminal prosecution?

What emerges from the record is:

(a) There were two FIRs filed pursuant to reporting that Respondent No.1

was guilty of objectionable behavior with adolescent girl students in the

school. In both these FIRs the investigation was undertaken and chargesheets

stand filed. Thus, prima facie, the allegations made in the FIR were

found sustainable in police investigation and Respondent No.1 is presently

accused of having committed said offences.

(b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1 was

arrested and remained in custody for about seven days.

(c) During the present inquiry 12 witnesses were examined out of whom five witnesses were girls studying in the school.

It was thus not just two girl students, pursuant to whose complaint the

crime was registered against Respondent No.1, but there were other students

as well. Some parents had also gone to the extent of levelling allegations

against Respondent No.1. The conclusion by the Convener in the report that

the charges were sensitive and that the case called for strict action, was

absolutely correct. On the other hand, the reports of the Nominee of

Respondent No.1 and the State Awardee Teacher not only show complete lack

of sensitivity but they also got bogged down unnecessarily by a question

whether any action on their part would amount to contempt of court or not. It

is well settled that a departmental proceeding and proceedings in a criminal

court are completely different. The purpose is different, the standard of proof

is different and the approach is also different. The initiation of the process in

a departmental proceeding, specially on charges with which we are concerned

in the present matter can never be said to be amounting to contempt of court

even if the criminal proceedings were pending. The allegations made against

Respondent No.1 were of such level and dimension that an immediate action

on the departmental front was required to be undertaken and such action by its

very nature had to be completely independent. Whether any criminal trial

was pending or not would not be having any bearing on the pending issue

before the Inquiry Committee. We have, therefore, no hesitation in observing

that the approach of the Nominee of Respondent No.1 and of the State Awardee Teacher was completely wrong and unsustainable.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3456 OF 2019

THE SECRETARY, LUCY SEQUEIRA TRUST Vs  KAILASH RAMESH TANDEL AND ORS.

Author: Uday Umesh Lalit, J.

Dated: April 08, 2019.

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What are the powers of the high court in the challenge of disciplinary action against an employee?

 In Union of India v. P. Gunasekaran8, this Court held as follows : (SCC pp. 616-17, paras 12-13)

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.”

 In the High Court of Jharkhand at Ranchi

(Before Deepak Roshan, J.)

W.P.(S) No. 4120 of 2014

Balwant Singh V   Union of India 

Citation: 2020 SCC OnLine Jhar 889

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Leading Supreme court Judgment on the obligation of disciplinary authority to furnish enquiry report to delinquent in the departmental enquiry

 This group of matters is at the instance of various parties, viz., Union of India, Public Sector Corporations, Public Sector banks, State Governments and two private parties. By an order dated 5th August, 1991 in Managing Director, Electronic Corporation of India v. B.Karunakar MANU/SC/0474/1992 : (1992)1SCC709 , a three Judge Bench of this Court referred that matter to the Chief Justice for being placed before a Larger Bench, for the Bench found a conflict in the two decisions of this Court, viz., Kailash Chander Asthana etc. etc. v. State of U.P. and Ors. etc. etc. MANU/SC/0221/1988 : (1988)IILLJ219SC , and Union of India and Ors. etc. etc. v. Mohd. Ramzan Khan MANU/SC/0124/1991 : (1991)ILLJ29SC both delivered by the Benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of SLP (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, has therefore, been referred to this Bench.

2. The basis question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry 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 inquiry are silent on the subject or are against it?

(ii) Whether the report of the Inquiry 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's case (Supra) will apply to all establishments - Government and non-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 Ramzan Khan's case (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 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 20th November, 1990?

Hence the incidental question raised above may be answered as follows:

(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is a follows:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry 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 inquiry 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. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is 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 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.

Hence, in all cases where the Inquiry 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 Courts/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 Court/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 of 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 to 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 inquiry, by placing the employee under suspension and continuing the inquiry 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 inquiry 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 inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3056 of 1991

Decided On: 01.10.1993

Managing Director, ECIL, Hyderabad  Vs.  Karunakar and Ors.

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Whether disciplinary authority can rely on statements of witnesses recorded in preliminary enquiry if enquiry officer has not permitted delinquent to cross-examine them?

In the aforesaid backdrop, we have to consider the most relevant issue involved in this case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to whether it was permissible for either of them to take into consideration their statements recorded in the preliminary inquiry, which had been held behind the back of the Appellant, and for which she had no opportunity to cross-examine either of them.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2668 of 2005

Decided On: 18.03.2013

 Nirmala J. Jhala Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: B.S. Chauhan, J.

Citation:MANU/SC/0257/2013,AIR 2013 SC 1513

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Supreme Court: Basic principles for conduct of disciplinary enquiry

In State Bank of Patiala & Ors. vs. S.K. Sharma, MANU/SC/0438/1996 : (1996) 3 SCC 364, the Supreme Court summarized the principles applicable to a domestic inquiry as under:-

"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.

(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 Constitution Bench in B. Karunakar [MANU/SC/0237/1994 : (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.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority 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 is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

IN THE HIGH COURT OF DELHI

W.P. (C) 3215/2018, CM Nos. 11594 and 11595/2019

Decided On: 18.05.2020

 Rajesh Singh Sehgal  Vs. Ministry of Civil Aviation and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

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Whether delinquent can be held guilty in departmental inquiry if on the same facts he is acquitted by the criminal court?

It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honorably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2582 of 2006 

Decided On: 10.05.2006

G.M. Tank Vs. State of Gujarat 

Hon'ble Judges/Coram:

AR. Lakshmanan and R.V. Raveendran, JJ.

Citation: MANU/SC/8156/2006 : (2006) 5 SCC

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Supreme Court: Discrepancies In Evidence Against Delinquent Not A Ground To Interfere With Findings Of Disciplinary authority

It is not the case of no evidence or that the findings are

perverse. The finding that the respondent is guilty of misconduct

has been interfered with only on the ground that there are

discrepancies in the evidence of the Department. The

discrepancies in the evidence will not make it a case of no

evidence. The Inquiry Officer has appreciated the evidence and

returned a finding that the respondent is guilty of misconduct.

15. The disciplinary authority agreed with the findings of the enquiry

officer and had passed an order of punishment. An appeal before

the State Government was also dismissed. Once the evidence has

been accepted by the departmental authority, in exercise of power

of judicial review, the Tribunal or the High Court could not interfere

with the findings of facts recorded by reappreciating evidence as if

the Courts are the Appellate Authority. We may notice that the

said judgment has not noticed larger bench judgments in S. Sree

Rama Rao and B.C. Chaturvedi as mentioned above. Therefore,

the orders passed by the Tribunal and the High Court suffer from

patent illegality and thus cannot be sustained in law. Accordingly,

appeal is allowed and orders passed by the Tribunal and the High

Court are set aside and the order of punishment imposed is

restored.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8071 OF 2014

THE STATE OF KARNATAKA Vs N. GANGARAJ 

HEMANT GUPTA, J.

Dated:FEBRUARY 14, 2020.

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When charge sheet be served on delinquent by office peon in departmental enquiry?

 Learned counsel for Union of India has strenuously urged that since the respondent had been absenting himself from the office unauthorisedly, the service of charge sheet sent to him through registered post should be treated as sufficient. This contention cannot be accepted.

3. Respondent was an employee of the appellant. His personal file and the entire service record was available in which his home address also had been mentioned. The charge sheet which was sent to the respondent was returned with the postal endorsement "not found". This indicates that the charge sheet was not tendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was tendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement "not found", it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent.

4. So far as the service of show cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show cause notice either through the office peon or by registered post.

IN THE SUPREME COURT OF INDIA

C.A. No. 1477 of 1993

Decided On: 30.07.1998

Union of India (UOI) Vs. Dinanath Shantaram Karekar and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and G.B. Pattanaik, JJ.

Citation:  AIR 1988 SC 2722

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Whether person who is representing employee in departmental enquiry is entitled to get reimbursement of travel and other costs?

 It is thus clear from an analysis of the above Regulations and the Circulars that
the reimbursement of TA/DA have consciously and specifically been provided
only for serving, retired or dismissed employees of Respondent No.1 Bank who
are acting as Defence Representatives. The Petitioner has been unable to show
a single Regulation or Circular which would compel Respondent No.1 Bank to
reimburse the traveling expenses and/or TA/DA of a non employee / third
party Defence Representative. Accordingly, it is untenable for the Petitioner to
contend, on the basis of the Regulations and the Circulars, that the Respondent
is entitled for reimbursement of travelling expenses for Mr. Marpakwar, who is
admittedly not a serving, retired or dismissed employee of Respondent No. 1.
19. We cannot accept the submission of Mr. Singhvi that the non reimbursement of
travelling expenses would render the defence of Petitioner illusory. Nothing
stopped the Petitioner from engaging the services of an employee of
Respondent No.1 Bank, serving, dismissed or retired, in which case he would
have been entitled to reimbursement of travelling expenses. It is not as if the
Petitioner was not aware of the concerned Regulations, having himself
repeatedly invoked the same in the earlier rounds of litigation filed in this
Court. This being the position, being fully conscious of the Regulations

specifically providing for reimbursement of TA/DA only for employees, the
Petitioner chose to engage Mr. Marpakwar as his Defence Representative. The
Petitioner cannot simultaneously seek to invoke the Regulations when it suits
his purposes and yet seek to deviate from the Regulations or seek something
beyond the Regulations, as he is attempting to do in the present case. It is not
the grievance of the Petitioner in the present case that the Defence
Representative has not been heard, and accordingly, there is nothing illusory
about the opportunity to defend which is given to the Petitioner.
In the present case, there is an express provision in the
Regulations and in the Circulars for reimbursement to employees. The present
matter is a fit case where the expression expressio unious et exclusio alterius
would apply. The Regulations with which we are concerned, having expressly
contemplated a Defence Representative being both an employee and a nonemployee,
consciously provided for reimbursement of TA/DA only to Defence
Representatives who were employees. Thus, it was consciously provided that

only those persons would be entitled to reimbursement and non-employees
were specifically excluded from the ambit of reimbursement of TA/DA. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1999 OF 2018

Subhash S. Sawant Vs  Central Bank of India 

CORAM : AKIL KURESHI &
S.J. KATHAWALLA, JJ.

PRONOUNCED ON : 16TH JULY, 2019

JUDGMENT ( PER S.J.KATHAWALLA, J. ) :

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Whether it is mandatory to hear delinquent if disciplinary authority disagrees with finding of enquiry officer?

 In J.A. Naikasatam vs. Prothonotary and Senior Master, Bombay High Court Bombay reported in MANU/SC/0894/2004 : 2004 (8) SCC 653, it was held that, when finding of Inquiry Officer was in favour of delinquent and the disciplinary authority takes a contrary view, giving of opportunity of hearing to delinquent is necessary even if the requirement may not have been contemplated by the Rules. However, the opportunity of personal hearing is not essential. Where the delinquents were given a copy of tentative decision of disciplinary authority and they furnished detailed explanation, the principles of natural justice were fully complied with. There was no infraction of rules or infirmity in the said decision.

 As per Rule 9(2) of Discipline & Appeal Rules, if the Disciplinary Authority does not agree with the finding of Inquiry Officer and holds him guilty, it shall record its reasons for such disagreement and as held in J.A. Naikasatam (supra), it should give opportunity of hearing to the delinquent. The order of disciplinary authority does not show the compliance of the above procedure, in tune with the principles of natural justice.

16. In the light of these facts, the impugned order is not sustainable. Hence, the petition is allowed. The impugned order is set aside. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5094 of 2002

Decided On: 30.01.2019

 Hanumant  Vs.  The Disciplinary Authority and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and A.M. Dhavale, JJ.

Citation: 2019(3) MHLJ 320

A.M. Dhavale, J.

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Whether minor penalty imposed on government servant can be quashed if show cause notice issued to him was vague?

We find that the Petition deserves to be allowed on two grounds. Firstly, perusal of the show cause notice would reveal that allegations made against the Petitioner in the show cause notice are totally vague in nature. It is settled law that if the allegations in the show cause notice are vague, it would not be possible for delinquent to effectively submit his reply and therefore the same would violate the principles of natural justice. Secondly, Petition deserves to be allowed on the ground that the impugned order does not give any reasons.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1852 of 2014

Decided On: 16.01.2019

Manik Abaso Jadhav  Vs. Mira Bhayandar Municipal Corporation and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and N.J. Jamadar, JJ.

Citation: 2019(2) MHLJ 693

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Whether prosecution is obliged to supply particular piece of evidence to other side even if it is not relying on said evidence?

The second point raised by Mr. Dutta which I will now deal with relates to the effect of the Corporation not making available the test report of Mumbai. According to learned counsel, the test report was in favour of the writ petitioner and if that was made available to him by the Corporation, he would have produced it during the adjudication. If that report was gone into by the adjudicating authority, there was every likelihood of the petitioner being exonerated from the charges of fiddling or tampering with the apparatus. I was shown two English Decisions, R v Layland Magistrates, ex parte Hawthon (1979) 1 All. E.R. 209 and R v Blundeston Prison Board of Visitors, exparte Fox-Taylor (1982) 1 All. E.R. 646 . In first of those cases the Court recognised a duty on the prosecution to inform the defence of any witness who was acting against the prosecution, so that the accused may produce that witness at the trial. The accused had not been so informed. The court held that the trial had been vitiated and there was a breach of the principles of natural justice.

First of all, these decisions relate to a criminal trial or a statutory enquiry, which is not the case here.

Secondly, I do not think that there is any obligation on the part of the prosecution, in this country to disclose to the accused the potential witnesses they were interrogating and supply the names of anti-prosecution witnesses to the defence. Far less is the duty of the prosecution in this country to hand over or give information about witnesses to the accused, particularly when the witness was likely to give evidence against the prosecution and for the defence. It is for each party to produce his evidence. It is no part of the duty of the other side to help the adversary to procure a witness or evidence. Thirdly, the Court was adjudicating the consideration of a show cause notice issued by the Corporation as to why the dealership licence in favour of the petitioner should not be revoked. In this type of cases such strict rules of evidence or the requirement of rigid compliance with the principles of natural justice do not apply. It is only necessary for the Court to ascertain whether the recipient of the show cause notice was given an opportunity to meet the case. It is also necessary to determine whether he was allowed to adduce evidence and whether he was given fair hearing before the decision was made. Of course, there is no denial that the Court is empowered to scrutinize the correctness of the decision actually made.

The second case, in my opinion, has no application. Enquiry by the Board of visitors was inquisitorial. The question was whether the prison authorities were in breach of their duty by not informing the board about a potential witness. Here as discussed hereinafter, the Mumbai report was not relied upon in adjudication.

Mr. Mookerji, learned Senior Advocate for the Corporation, submitted and I think very rightly that the ground on which the writ petitioner was adjudged guilty was that he failed to take adequate care of the premises and installations at the premises. After the Corporation finally sealed the installations in the petrol pump on 24th September 2011, the writ petitioner was found guilty of gross negligence in safeguarding the premises. It is for this reason that his license was terminated. The Mumbai report was not relied upon. In those circumstances Mr. Mookerji was absolutely right when he submitted that if a particular piece of evidence was not relied upon for the purpose of adjudication, it really did not matter whether that piece of evidence was disclosed to the adversary or not. In my opinion neither could it be said that there was breach of the principles of natural justice, because if a particular document was not relied upon in adjudication, the prosecutor was under no obligation to furnish details of or a copy of the said document to the alleged delinquent.

Neither do I think that the petitioner was not given notice of any charge against him that was considered in the adjudication.

Even if the adjudication order is considered through the lens of an administrative law lawyer it cannot be said that it was perverse. Neither is the order of termination disproportionate.

Kolkata High Court (Appellete Side)

M/S. Hazra Filling Station vs Indian Oil Corporation Limited ... on 17 August, 2015

Author: I. P. Mukerji
W.P. No. 1618 (W) of 2012

Citation;AIR 2016(NOC)304 Cal

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Whether act of entering Court building chewing Pan is offence under S 116 of bombay police Act?

 Thus, the question which remains is about the conviction and
sentence of fine as imposed. Section 117 of the Bombay Police Act is a
punishing Section and the substantive sentence for the present purpose is
Section 116 of the Bombay Police Act, which reads thus :
“116. Disregard of notice in public building.
No person shall, in any Court, Police Station, Police
Office, building occupied by Government or building
occupied by any public body, smoke or spit in contravention
of a notice by a competent authority in charge of such place
and fixed to such Court, Station, office or building.”
Evidently, the act of entering Court building chewing Pan is
not covered in this Section. It is trite that any provision defining an offence
has to be read and construed strictly. There is no scope for liberal
construction in such a case. We would again hasten to add that this may
not be read as approving the act of the petitioner in entering the Court
room chewing Pan. However, it has to be seen, that strictly speaking the act
did not fall under Section 116 of the Act. In our considered opinion, the
petitioner cannot be precluded from demonstrating the same in the present
proceeding, notwithstanding a formal challenge being raised to the order of
conviction and sentence. This is more so, when the same has resulted into a
drastic civil consequence to the petitioner, of sustaining dismissal from
service. We, therefore, find that going by the phraseology as used in
Section 116 of the Act, the act did not strictly fall in the same. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4732/2003

 Dnyanshwar  Vithuji Ghude Vs  State of Maharashtra
CORAM
: A.P. BHANGALE AND
C.V. BHADANG, JJ.

Date of pronouncing the judgment : 01.10.2014
Citation;2015(2) ALLMR 647

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Whether Departmental authority can be held liable for abetment of suicide by holding delinquent guilty in enquiry?

It is possible that some persons who might have been 
against   the   deceased   tried   to   take   advantage   of   the   complaint 
lodged by Babybai Jadhav, and create a big uproar regarding the 
incident   resulting   in   loss   of   reputation   of   the   deceased.     The 

deceased, as a result of this, was apparently feeling humiliated.  If 
the   deceased   has   taken   the   step   of   putting   an   end   to   his   life 
because of loss of reputation, and the humiliation felt by him on 
account of being subjected to a departmental enquiry, it is indeed 
unfortunate but, that by itself would not render the petitioner – 
and even the other accused – to be prosecuted on the allegation of 
having abetted the commission of suicide by the said Shivaji Gade.
The   requisite  mens   rea   –  atleast   on   the   part   of   the 
petitioner – is clearly lacking in this case.
The parameters of criminal liability are well settled. 
Merely because a suicide has been committed and taking of such 
extreme   step   by   the   deceased   is   attributed   to   the   acts   of   some 
persons,   such   persons   would   not   be   liable   to   be   prosecuted   as 
abettors to the suicide.
There must be some indication of the requisite  mens 
rea on their part before they can be successfully prosecuted.

CRIMINAL WRIT PETITION NO.825 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
Sanjay Kumar K. Shinde
Versus
The State of Maharashtra

CORAM :   ABHAY M. THIPSAY, J.
Citation;2015 ALLMR(CRI)1085
DATED  :    10th DECEMBER 2014.

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Supreme Court: Suspended employee should not be denied subsistence allowance if he is not residing at the headquarters

 From the aforesaid authority it is clear as day that the presence at the headquarters was not a requirement under the Rule. In the case at hand, there is no rule that provides that the suspended employee should remain at the headquarters to be entitled to get subsistence allowance. That apart, as is evident, the Respondent herein had clearly stated about his financial condition and his inability to remain at the headquarters. It is not the case of the functionaries of the State that he was asked to furnish a certificate and he did not furnish. The whole case rests on the fact that as the Respondent-employee did not remain at the headquarters no subsistence allowance was paid. We have noted the aforesaid authorities as doctrince of prejudice has been associated with non-payment of subsistence allowance. We need not dwell on the concept of absolute position in law. We are only inclined to state that it would depend upon the stipulations made in the rules and the facts of the case. We may hasten to clarify that rules made by the Competent Authority are always subject to their constitutional validity. As far as the present case is concerned the facts do clearly reveal that the salary that was due to the Respondent was not paid for unfathomable reason. The subsistence allowance was not paid on the singular ground that he had not stayed at the headquarters despite a stipulation in the order of suspension. The Respondent had submitted number of representations with regard to his penurious condition to stay at the headquarters and participate in the disciplinary proceedings. There is nothing in the Rules which would require for a suspended employee to remain at the headquarters. Thus, in the present case, even if the doctrince prejudice is applied, it is quite obvious that the Respondent herein was absolutely handicapped to participate in the departmental proceedings and hence, prejudice was caused. In this backdrop, we do not find any error in the conclusion arrived at by the High Court as far as the quashing of order of punishment is concerned. 1

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6265 of 2013 (Arising out of SLP (C) No. 35698 of 2011)

Decided On: 26.07.2013

Appellants: State of Bihar and Ors.
Vs.
Respondent: Arbind

Hon'ble Judges/Coram:Anil R. Dave and Dipak Misra, JJ.1

Citation; AIR 2013 SC 3329

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Charges should be specific, definite and giving details of incident which formed basis of charges and no enquiry can be sustained on vague charges.

Where the chargesheet is accompanied by the statement of facts and the allegations are not specific in the chargesheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.

Supreme Court of India

Anant R Kulkarni vs Y.P.Education Society & Ors. on 26 April, 2013

Bench: B.S. Chauhan, Fakkir Mohamed Kalifulla

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