MADHUSUDAN MISRA v. STATE OF ORISSA — 1972 DIGILAW 107 (ORI)

JUDGMENT : G.K. Misra, C.J. - Though a number of contentions had been raised in the writ application, the only point urged during hearing is that the report of the inquiring officer was not given to the Petitioner and as such the impugned order of discharge (Annexure-7) dated 28.10.1964 and Annexure 8 dated 18.8.1965 and 10 dated 2-1-1969 are liable to be quashed. 2. Facts relevant to the aforesaid contention may only he stated. The Petitioner was appointed as a driver by Annexnre-1 dated 13/14th December, 1953 in the State Transport Service, Sambalpur zone. The post was purely temporary and terminable at any time without notice. He was placed under suspension on 5.3.1964. On 3rd April 1964 a charge-sheet (Annexure-2) was served on him. The two charges were that though on 29-2-1964 he was signalled by the District Transport Manager (Enforcement) to stop the bus for surprise checking near Krishna Chandrapur he did not stop the bus with a view to cause hindrance to the surprise check and he connived with the conductor and cleaner to misappropriate the fare of fourteen passengers who were carried in the bus without ticket. On 21st April, 1964 the Petitioner showed cause by denying the charges in Annexure-3 There was an enquiry in which evidence was taken. He was caned upon to show cause by Annexure-4 dated 22nd August 1964 as to why he should not be discharged from service. On 28.8.1964 by Annexure-5 the Petitioner asked for certain documents to enable him to submit his explanation to the second show-cause notice. Those documents are (i) copy of the enquiry report by the A T. M., Dhenkanal; (ii) copy of the enquiry report by the D.T.M., Jagatpur, during personal hearing; (iii) copy of the report of Shri Bhagirathi Panda cited as a witness in the first proceeding; and (iv) copy of Government circular for compulsory stoppage of bus at wayside bus stops where there is no passenger to board or to get down. On 28-9-1964 the Petitioner submitted his explanation (Annexure-6) to the notice as to why he should not be discharged from service. In paragraph 4 of Annexure-6 he made a complaint that the copy of the alleged Government circular for compulsory stoppage of bus at wayside bus-stop was not supplied to him inspite of-repeated demands. He, however, did not make any grievance that the enquiry report was not supplied to him. In paragraph 4 of Annexure-6 he made a complaint that the copy of the alleged Government circular for compulsory stoppage of bus at wayside bus-stop was not supplied to him inspite of-repeated demands. He, however, did not make any grievance that the enquiry report was not supplied to him. On 28th of October, 1964 the Petitioner was discharged from service by the District Transport Manager, Cuttack Zone, Cuttack, by his order (Annexure-7) after taking into consideration the materials collected during the disciplinary proceeding and the second show-cause petition. The Petitioner's appeal against his order of discharge to the Divisional Manager, S.T.S., Mayurbhanj Division, Baripada, was dismissed by the order (Annexure-8) dated 18-8-1965. The Petitioner submitted a memorandum of appeal (Annexure-9) on 13th September. 1965 before the Transport Minister, Orissa. With the memorandum certain documents including the findings of the A.T.M. (inquiring officer) were enclosed for reference and perusal by the Minister. The second appeal was dismissed by the Minister and the decision was intimated to the Petitioner by Annexure-10 dated 2nd January, 1969. The writ application has been filed under Article 226 of the Constitution for quashing the impugned orders (Annexures 7,8 and 10). 3. In the counter-affidavit filed by the opposite parties it is stated that the complete records of the disciplinary proceedings are not available. Those records were sent from the office of the Director, State Transport Service, to the Transport Department in connection with the appeal filed by the Petitioner and the same have not been traced out inspite of best efforts and the averments in the affidavit Are based on available records which have been reconstituted from the office of the A.T.M., Dhenkanal, who was the inquiring Officer. The main stand is that the Petitioner was not supplied with the report of the inquiring officer when be asked for the same in Annexure-5. In the absence of records a reasonable inference is to be drawn in support of such a conclusion from the fact that the Petitioner submitted his explanation (Annexure-6) to the second show-cause notice and therein he did not make any complaint about non-supply on the report of the inquiring officer though expressly he made a grievance about non-supply of the Government circular for compulsory stoppage of bus at wayside bus-stop. The conclusion is reinforced by the further fact that the Petitioner enclosed the findings of the inquiring officer with the memoran-dum of second appeal filed before the Minister. Therein he did not make any grievance about non-supply of the report of the inquiring officer. It was further averred that even if non-supply of the report of the inquiring officer is accepted, the order of discharge is not vitiated inasmuch as no prejudice has been caused to the Petitioner. 4. The first question for consideration is whether, in fact, the inquiry report was supplied to the Petitioner in response to his demand in Annexure-5 in his explanation (Annexure-6) the Petitioner made a grievance of non-supply of a copy of the Government circular (item No. 4 in annexure-5). But he made no grievance about non-supply of a copy of the inquiry report. Further more, he attached a copy of the findings of the inquiring officer to the memorandum of second appeal (Annexure-9) filed before the Minister. He has not explained in his affidavit as to how and when he got the copy of the findings of the inquiring officer so as to enclose the same with Annexure-9 Neither in Annexure-6 nor at any subsequent stage be made any grievance about non-supply of the copy of the inquiry report. The reasonable inference from the instrinsic evidence and the surrounding circumstances is that the inquiry report was supplied to him before be filed his explanation (Annexure. 6). Factually, therefore, the Petitioner's stand that he was not supplied with the copy of the inquiry report is untrue. 5. On the aforesaid finding it is unnecessary to examine the legal question whether non-supply of the copy of the inquiry report has vitiated the order of discharge. We would, however, proceed to examine the question of law on' the assumption that the inquiry report had not been supplied in this case. 6. Reliance is placed by Mr. Murty on Rule 15(10)(i)(a.) of the Orissa Civil services (Classification, Control & Appeal) Rules, 1962 (hereinafter to be referred to as the Rules) in support of his contention that supply of the inquiry report is mandatory, on failure of which the ultimate order imposing penalty is liable to be quashed. 6. Reliance is placed by Mr. Murty on Rule 15(10)(i)(a.) of the Orissa Civil services (Classification, Control & Appeal) Rules, 1962 (hereinafter to be referred to as the Rules) in support of his contention that supply of the inquiry report is mandatory, on failure of which the ultimate order imposing penalty is liable to be quashed. The aforesaid rule runs thus: 15(10)(i) If the disciplinary authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in Clause (vi) to (ix) of Rule 13 should be imposed, it shall (a) furnish to the Government servant a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement if any, with the findings of the inquiring authority; The penalty specified in Rule 13(viii) is removal from service which includes discharge from service. Mr. Murty contends that violation of this mandatory provision entails quashing of the order of discharge. 7. Rule 3(1)(b) of the Rules lays down that these rules apply to all Government servants except persons subject to discharge from service on less than one month's notice. As has been stated already, the Petitioner was appointed under Annexure-1 and his post was purely temporary and was terminable at any time without notice. His case comes within the mischief of Rule 3(1)(b) and accordingly the Rules and Rule 15(10)(i)(a) have no application to his case. 8. Even though the Petitioner is not governed by the provisions of the Rules, his case is covered by Article 311(2) of the Constitution. It lays down that where it is proposed, after. inquiry, to impose upon the delinquent any penalty of the nature of dismissal, removal or reduction in rank, the same cannot be imposed unless he has been given a reasonable opportunity of making representation on the penalty proposed. The object of the second show-cause notice is to enable the public servant to satisfy the disciplinary authority that (i) he is innocent of the charges framed against him; and (ii) even if charges are proved, the punishment proposed against him is unduly severe see Union of India v. H.C. Goel AIR 1964 S.C. 369. The inquiry report contains the tentative decision of the inquiring authority based on the oral and documentary evidence collected during the inquiry. The inquiry report contains the tentative decision of the inquiring authority based on the oral and documentary evidence collected during the inquiry. The delinquent as a part of the principle of natural justice is entitled to a copy of such a report so that lie would know the mind of the inquiring officer and the grounds which in financed him in finding the delinquent guilty and in proposing the particular penalty. It is then alone that he would get an opportunity to satisfy the punishing authority that he is innocent of the charges framed against him and in the alternative if the charges are found to be proved, to show that the proposed punishment is too severe see State of Gujarat Vs. R.G. Teredesai and Another, . 9. This is, however, not to say that in every case wherever the inquiry report has not been supplied to the delinquent the ultimate penalty imposed is liable to be quashed. Whether a reasonable opportunity has or has not been afforded to the Government servant by non-supply of the inquiry report would depend upon the facts and circumstances of each case. As was, however, pointed out in State of Maharashtra v. Bhaishankar Avalram Joshi and Anr. AIR 1969 S.C. 132, it would be in very rare oases indeed in which it could be said that the Government servant is not prejudiced by the non-supply of the report of the inquiring officer. In other words, the facts and circumstances of each case must be examined to see whether prejudice was caused by non-supply of the inquiry report. The same would be the principle also where the inquiry report is not supplied in accordance with Rule 15(10)(i)(a) of the Rules. 10. We now proceed to examine whether in this case any prejudice was caused by the non-supply of the inquiry report if it was in fact not supplied. As has already been said, the inquiry report constitute the foundation of attack by the delinquent in his explanation to the second show-cause notice as to the correctness of the findings and the severity of the proposed punishment. In this case the charges were very simple and the defence was one of denial. In the explanation (Annexure-6) the delinquent made a full criticism of the evidence adduced in the case and did not make any grievance of the non-supply of the report. In this case the charges were very simple and the defence was one of denial. In the explanation (Annexure-6) the delinquent made a full criticism of the evidence adduced in the case and did not make any grievance of the non-supply of the report. The second show-cause notice (Annexure-4) based on the finding in the inquiry report indicated to the Petitioner that the proposed punishment was one of discharging him from service. The findings of the inquiring officer were attached to the memorandum of second appeal. The grounds taken in the second appeal to the Minister relating to the findings of the inquiring officer are not substantially different from the line of attack made in the explanation (Annexure-6) Clearly, therefore, the Petitioner was not prejudiced by the Don-supply of the inquiry report before submission of his explanation (Annexure-6). Therefore, no reasonable opportunity of defending was withheld from the Petitioner by the non-supply of the inquiry report. 11. We would sum up our conclusions thus: (i) The inquiry report was supplied to the Petitioner in response to his demand in Annexure-5 prior to the submission of his explanation (Annexure-6). (ii) Even if the inquiry report is held not to have been supplied to the Petitioner prior to the submission of his explanation (Annexure-6), no prejudice has been caused to him and there has been no Jack of reasonable opportunity on this score. 12. In the result, the writ application fails and is dismissed, but in the circumstances, without costs. K.B. Panda, J. 13. I agree.