1) While examining whether procedural requisites have been met, by the authorities below, however, the test of "prejudice" must apply; breach of procedure, which does not result in prejudice, to the officer employee concerned, is not to be treated as fatal. Though, ordinarily, the onus to establish prejudice, is on the officer, or employee so alleging, the writ court may, justifiably, in some circumstances, infer the existence of prejudice - such as inordinate or unconscionable delay in issuance of a charge-sheet, denial of adequate opportunity, to the employee to defend the charges against him, reliance on material undisclosed to the employee, and the like. Whether, in a given case, prejudice has resulted, or not, is not an issue for which straight-jacketed tests are available; ultimately, this is a matter in which the writ court has to exercise its best judgment.
2) The Enquiry Report, dated 16th March, 1999, of the EO, rejected the petitioners request for being provided copies of the above mentioned documents, not on the ground that the documents did not exist, but because "they had no relevance in the present enquiry because the enquiry pertains to a period when the Agency of Shri Yugal Gupta was fully functioning under Shri Midha and there is no base to prove or contest the origin of the agency". To my mind, this finding of the Enquiry Officer, and the decision of the Enquiry Officer to deny, to the petitioner, the documents sought by him, are manifestly violative of the principles of natural justice, and also suffer from perversity. The observation, of the EO, that "the enquiry pertains to a period when the agency of Shri Yugal Gupta was fully functioning under Sh. Midha and there is no base to prove or contest the origin of the agency", in fact, itself negates the allegation, in the charge-sheet, that Yugal Gupta was a dummy agent. In observing thus, the EO impliedly accepts the fact that an agent, by name Yugal Gupta was, in fact, working with the respondent. This observation, in fact, takes the wind away from the sails, as it were, of the most fundamental allegation in the charge-sheet, as levelled against the petitioner. Besides, the observation is clearly perverse, as it fails to notice - intentionally or otherwise - the fact that the charge-sheet against the petitioner was premised on the assumption that Yugal Gupta, into whose account agency commission was paid and, subsequently, misappropriated by the petitioner, was a dummy/fictitious agent. It is impossible to understand, therefore, how the EO held that there was "no base to prove or contest the origin of the agency". The EO had, therefore, either not even understood the Government of the allegations against the petitioner, or was determined not to allow documents to the petitioner, on one ground or the other.
(vi) The inequity inherent in the above approach of the EO is underscored by the fact that as many as ten documents were permitted to be produced by the respondent-Management. The EO, thereby, ensured that the petitioner would not be provided with a level playing field, which is the sine qua non of due process and fair play.
(vii) In the opinion of this Court, ordinarily, documents sought by a charged officer, the providing of which lies within the power of the management/establishment, ought to be provided to him. The EO is not, ordinarily, expected to sit in appeal over the decision of the charged officer, regarding the documents which, according to him, are necessary for his defence. Of course, if it does not lie within the province of the management, to provide the said documents, or if the request for documents is found to be manifestly unreasonable, or a deliberate attempt to protect, or otherwise frustrate, the disciplinary proceedings, the request for providing documents may be denied. In such an event, however, the precise reason for denying the said request would necessarily have to find place in the Enquiry Report. The reasons cited by the EO, in the Enquiry Report, dated 16th March, 1999, in the present case, i.e., that the documents, requested by the petitioner, were not relevant to the enquiry, conveniently omits to notice the fact that the documents were, in fact, extremely necessary, for the petitioner to be able to establish the points raised, by him, in his defence. They cannot, therefore, sustain.
3) In Hardwari Lal v. State of U.P. MANU/SC/0685/1999 : (1999) 8 SCC 582, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box. There is no reason why this principle would not apply, even in a case in which the charged officer is prevented from producing evidence, of witnesses relevant for his defence. The wholesale rejection, by the EO, of the request, of the petitioner, to lead the evidence of the said persons, with no reason, therefor, being forthcoming, has also, therefore, necessarily to be regarded as arbitrary and violative of the principles of natural justice.
4) There is no explanation therefor. Even more significantly, there is no explanation for why the respondent did not choose to lead the evidence of the said allegedly "fictitious" Yugal Gupta, as a Management Witness. In Hardwari Lal MANU/SC/0685/1999 : (1999) 8 SCC 582, as already noted hereinabove, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box.
5) The onus to establish that the petitioner had committed misconduct was, unquestionably, on the respondent. Absent discharge of such initial onus, the petitioner could not be burdened with the responsibility of defending himself against the allegations. The petitioner was also entitled to be extended all due opportunity, and to the benefit of the principles of natural justice and fair play.
IN THE HIGH COURT OF DELHI
