Gyanendra Nath Sharma v. State of U. P. & Anr — 1992 DIGILAW 568 (ALL)

JUDGMENT S.P. Srivastava, J. - While the petitioner was posted as Excise Inspector, Circle-I, Farrukhabad, disciplinary proceedings were started against him with the service of a charge-sheet dated 3.3.89 issued by the Excise Commissioner, U.P. levelling against him three charges. The aforesaid charge-sheet was served on the petitioner on 14.3.89. The disciplinary authority instead of holding enquiry himself appointed Sri B.B. Singh, Deputy Excise Commissioner, Kanpur as the Enquiry Officer delegating in his favour the requisite authority for conducting the enquiry proceedings. The Enquiry Officer was required to submit his report. The Enquiry Officer held the enquiry after affording opportunity to the petitioner to lead evidence and submitted his report dated 4.8.90 whereunder he held the charge No.1 to have been established in part while charges Nos.2 and 3 to have been fully established. 2. The disciplinary authority after considering the report submitted by the Enquiry Officer agreed with the conclusions reached by him vide his order dated 25.8.90 and imposed a punishment of reduction in the time scale of pay at the minimum for a period of five years with cumulative effect with a rider that no increment shall be payable to the petitioner for the first three years. The disciplinary authority further awarded a punishment of censure and directed for making an adverse entry in his character roll. 3. Feeling aggrieved by the order of the Disciplinary Authority dated 25.8.90, the petitioner preferred an appeal/representation which was disposed of by the State Government vide the order dated 10.12.90 whereunder the appeal/representation was dismissed. 4. The petitioner has now come up before this Court by means of the present writ petition challenging the orders dated 25.8.90 and 10.12.90 referred to above and seeking the quashing thereof. 5. The notices of the writ petition have been served on the respondents and in pursuance of the order dated 7.2.91, counter-affidavit has been filed on their behalf. The petitioner has also filed a rejoinder-affidavit in reply to the same. Affidavits having been exchanged between the parties, when this writ petition was taken up for admission, the counsel for the parties jointly requested that it may be finally disposed of. 6. Having heard the counsel for the petitioner and the learned Standing Counsel representing the respondents and considering their request indicated above this writ petition is being finally disposed of in accordance with the Rules of the Court at the admission stage. 7. 6. Having heard the counsel for the petitioner and the learned Standing Counsel representing the respondents and considering their request indicated above this writ petition is being finally disposed of in accordance with the Rules of the Court at the admission stage. 7. The main ground which has been urged and passed by the learned counsel for the petitioner while assailing the impugned orders is that it was incumbent on the respondent authorities to ensure the supply of the copy of the enquiry report dated 4.8.90 to the petitioner before passing the order dated 25.8.90 and since it was not done it clearly amounted to denial of reasonable opportunity to the petitioner in defending himself. The assertion is that this defect was fatal and vitiated the disciplinary proceedings to which the petitioner had been subjected. It has been urged that in these circumstances the impugned order whereunder the petitioner has been punished, is a nullity having been passed in utter disregard of the principles of natural justice. It has been further urged that the initial order being bad, the subsequent order passed by the appellate authority based upon the same is also rendered bad. 8. It has not been disputed before me by the learned counsel for the respondent that the copy of the enquiry report dated 4.8.90 had not been supplied to the petitioner before passing the order dated 25.8.90 whereunder the petitioner had been punished. What has been asserted by the learned Standing Counsel is that there is no such provision under the rule which necessitated the supply of the copy of the enquiry report to the petitioner before passing the order of punishment against him. It has, therefore, been urged that in the absence of any provision under the rule to supply the copy of the enquiry report to the petitioner before passing the order of punishment it could not be said that any constitutional provision was violated. It has been further urged by the learned Standing Counsel in opposition to the writ petition that the non supply of the copy of the enquiry report does not amount to denial of reasonable opportunity to the petitioner in defending himself. 9. It has been further urged by the learned Standing Counsel in opposition to the writ petition that the non supply of the copy of the enquiry report does not amount to denial of reasonable opportunity to the petitioner in defending himself. 9. It may be noticed in this connection that the relevant rules provide that the delinquent must be afforded an adequate opportunity of defending himself before inflicting upon him the punishment of reduction to a lower post or time scale or to a lower stage in a time scale. In the present case, as has already been indicated above, the enquiry had been delegated by the disciplinary authority to the enquiry officer. The oral and documentary evidence which constitute material, had been recorded by the enquiry officer in the presence of the charged officer and the charged officer had an opportunity to challenge the evidence and make his representation. The disciplinary authority has taken into account the findings returned by the enquiry officer while upholding the charges levelled against the petitioner. The fact that the report submitted by the enquiry officer constitutes a material and a very important material on which the findings of the disciplinary authority are based can admit of no doubt. If, therefore, at some stage a material is introduced in the form of enquiry officer's report and no opportunity is given to the charged officer to make a representation in respect thereof before the matter is finally decided by the disciplinary authority, the enquiry will stand vitiated, as a reasonable opportunity should be afforded to the charged officer to make his representation against any material which has come on record. 10. In the circumstances of the case, the enquiry report submitted against the petitioner did constitute a material on record which was being utilised against the petitioner and, therefore, the principles of natural justice warranted that the petitioner ought to have been afforded a reasonable opportunity to make his representation against the aforesaid report dated 4.8.90 which opportunity was not provided to him. It cannot be overlooked that the report of the enquiry officer, the copy of which was not supplied to the petitioner would have indicated the grounds on which the charges were held to be proved and the petitioner could, if a copy has been supplied, establish that the findings stood vitiated and were not liable to be sustained. It cannot be overlooked that the report of the enquiry officer, the copy of which was not supplied to the petitioner would have indicated the grounds on which the charges were held to be proved and the petitioner could, if a copy has been supplied, establish that the findings stood vitiated and were not liable to be sustained. Since no copy of the aforesaid report was furnished to the petitioner before passing the order dated 25.8.90, it is obvious that in the circumstances of the present case, the petitioner could not be deemed to have been given a reasonable opportunity to assail the findings of the enquiring authority. Refusal of such an opportunity not only amounts to violation of the guarantee embodied under Article 311 of the Constitution of India but also renders the order dated 25.8.90 a nullity. 11. An effective opportunity to defend should be a real and adequate opportunity which is not merely nominal or a sham one. It is not a formal thing but it is a matter of substance. It is a legal duty of a quasi-judicial authority to disclose to the party affected, the material which forms the basis of his decision. The principles of natural justice require performance of this duty. It is not necessary for the affected party to ask for it. The requirement of the affording of reasonable opportunity does not depend upon the Government servant as king for it. It is a statutory protection afforded to the Government servant and a statutory obligation stands cast upon the State in this regard and it is for the State to discharge that obligation irrespective of whether the protection is claimed by the servant or not. If it is held that the reasonable opportunity was not given to the delinquent, the order imposing the punishment must be set aside and the fact that the delinquent officer did not ask for such reasonable opportunity should not come in the way of the Court in granting the relief and setting aside the order of punishment. If it is held that the reasonable opportunity was not given to the delinquent, the order imposing the punishment must be set aside and the fact that the delinquent officer did not ask for such reasonable opportunity should not come in the way of the Court in granting the relief and setting aside the order of punishment. It is needless to emphasise that as an appellate authority the respondent No.1 should not have acted mechanically in upholding the order of the respondent No.2 and could have remedied the defect by setting aside the order dated 25.8.90 and ensuring that the disciplinary authority takes the decision afresh after affording the petitioner an opportunity to make a representation against the report submitted by the enquiry officer dated 4.8.90 after furnishing a copy of the same to the petitioner. In this connection it may be usefully noticed that a decision given without regard to the principles of natural justice is void. In Ridge v. Baldwin, (1963) 3 All ER 66. Lord Reid speaking for the House of Lord had made observations to this effect. The tests laid down by the Lord Reid in the aforesaid case were held to be relevant by a three Judge Bench of the Hon'ble Supreme Court in its decision in the case of Calcutta Dock Labour Board and Ors. v. Jafar Imam and others, 1965 (11) FLR 72 (SC), and it was observed that in a case where a statutory body or authority is empowered to terminate the employment of its employees the said authority or Body cannot be heard to say that it will exercise its powers without due regard to the principles of natural justice. A Division Bench of the Calcutta High Court in the case of M/s. Soya Chand Mul Chand v. The Collector of Central Excise and Ors., AIR 1968 Cal. 174 at 183 paragraph 43, has held that a decision given without regard to the principles of natural justice is void. 12. It is, therefore, apparent that non-supply of the report would constitute violation of principles of natural justice and accordingly will tantamount to denial of reasonable opportunity within the meaning of Article 311(2) of the Constitution. 174 at 183 paragraph 43, has held that a decision given without regard to the principles of natural justice is void. 12. It is, therefore, apparent that non-supply of the report would constitute violation of principles of natural justice and accordingly will tantamount to denial of reasonable opportunity within the meaning of Article 311(2) of the Constitution. In the circumstances of the present case there can be no escape from the conclusion that the petitioner had not been afforded reasonable opportunity of defending himself and the non-supply of the copy of the report dated 4.8.90 to him must be held to be fatal to the disciplinary proceedings. In fact now taking into consideration the decision of the Hon'ble Supreme Court in the case of Union of India and others v. Mohd. Ramzan Khan, 1990 I CLR 61 (SC), no other conclusion is possible. I respectfully agree with the view of the learned Single Judge in the case of Devi Lal Shal v. Union of India and Ors., 1991 (62) FLR 896 , about the application of the aforesaid decision of the Apex-Court to the cases of the nature as under consideration. 13. Since this writ petition can be disposed of finally on this short ground as indicated above, it is not necessary to go into the merits of other submissions made by the learned counsel for the petitioner. 14. In the result, in view of the conclusions indicated herein before, the writ petition succeeds in part and the impugned orders dated 25.8.90 and 10.12.90 passed by the Excise Commissioner and Joint Secretary, U.P. respectively, true copies of which have been filed as Annexures 9 and 11 to the writ petition are hereby, quashed with a direction that it will not preclude the respondents from supplying a copy of the enquiry report to the petitioner and give him an opportunity to make his representation against it and to complete the disciplinary proceedings from that stage in accordance with law. 15. It may, however, be clarified that the aforesaid direction should not be taken so as to necessarily continue the disciplinary proceedings which is entirely left to the discretion of the disciplinary authority. In the circumstances of the case there shall be no order as to costs.