Whether principles of natural justice violated if an enquiry report is not given to a delinquent employee?

 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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Whether the employer will be liable for defamation of employee if he conducts departmental enquiry against him?

 In the present case, the defendant has taken the defence of privilege. The question is whether the charge-sheet issued against the plaintiff, the enquiry report and the letter of dismissal of the plaintiff can be said to be protected by absolute privilege or qualified privilege?

37. The enquiry proceeding was initiated by the defendant by issuing the charge-sheet on the basis of information received that the matriculation certificate and mark-sheet submitted by the plaintiff at the time of his appointment were not genuine. The information was received from a reliable source and in my opinion could not be brushed aside as frivolous. If it was finally established that the information was true, that would have amounted to a criminal offence on the part of the plaintiff. Having got such information, it was incumbent upon the management of the defendant to hold an enquiry into the matter. Such enquiry was held as part of the management's duty and in larger public interest. As such, in my considered opinion, the enquiry proceedings and all publications made in connection therewith were privileged. As Lord Finlay L.C. observed in Adam vs. Ward, (1917) Appeal Cases 309, if a communication is made in pursuance of a duty, the same would be privileged. His Lordship was of the view that this privilege is qualified and may be rebutted by proof of express malice. In the present case, no case of malice has been established by the plaintiff. Hence, at least, the defence of qualified privilege would be available to the defendant.

38. The law is fairly clear that any step which is essentially a step in a judicial or quasi-judicial proceeding would be immune from liability for defamation as it gives rise to an occasion for privilege.  In O'Conor vs. Waldron, MANU/PR/0085/1934 : AIR 1935 PC 3, Lord Atkin observed that proceedings before an executive or administrative authority or a step to initiate such proceedings can only give rise to an occasion for qualified privilege. Gatley on Libel and Slander (5th Ed., page 181) states that no action will lie for defamatory statements contained in any document which is incidental to the proper initiation of judicial or quasi-judicial proceedings, information, complaint, writ or petition by which the quasi-judicial Tribunal is set in motion.

39. I have no doubt in my mind that the protection of privilege should extend to enquiry proceedings conducted by an employer against an employee. It would definitely not be desirable if an employer in spite of receiving information that an employee is allegedly committing a crime or other wrongful act detrimental to the public interest, refrains from holding an enquiry into the matter for the fear of being exposed to a defamation suit. Such a position would be extremely harmful to the interest of the public at large.

40. The question is whether such privilege should be absolute or qualified. I am of the view that the privilege should be qualified. This means that if the plaintiff is able to establish malice on the part of the defendant in conducting an enquiry proceeding against him by issuing charge-sheet, the defence of privilege will not be available to the defendant. However, in the present case, the plaintiff has been unable to establish malice on the part of the defendant in conducting the enquiry proceeding against him by issuing charge-sheet which culminated in his dismissal order. I am of the considered view that the materials complained of by the plaintiff and forming the basis of the present defamation suit are protected by qualified privilege. The fact that at a subsequent point of time due to intervention of the Hon'ble President of India, the order of dismissal was withdrawn and the plaintiff was reinstated in service, does not change the situation.

 IN THE HIGH COURT OF CALCUTTA

CS 11 of 2006

Decided On: 17.02.2017

 Manik Lal Bhowmik  Vs.  Bharat Sanchar Nigam Limited

Hon'ble Judges/Coram:

Arijit Banerjee, J.

Citation: MANU/WB/0098/2017

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