Summary
A retired Assistant Engineer was penalised with a pension cut and recovery after an enquiry in which no witness was examined, no document was proved, the enquiry report was never furnished to him, and the proceedings ran beyond the time fixed by the State Public Services Tribunal without any extension. Upholding the Tribunal and the High Court, the Court held that such an enquiry cannot support punishment; that after B. Karunakar furnishing the enquiry report is mandatory, so an employee never given the report need not prove prejudice unless he waived the right and the employer must justify the omission; that extension must be obtained before continuing beyond a court-fixed time; and that, given the lapse of time, no further opportunity to re-hold the enquiry was warranted.
Issues
- Whether an order of punishment could validly be made on the basis of a purported enquiry in which nobody presented the department's case, no witness was examined in support of the charges and no document was formally proved.
- Whether the disciplinary authority could rely on an enquiry report prepared on the basis of documents not supplied to the employee and on the charge-sheet and reply alone.
- Whether the failure to furnish the enquiry report to the employee vitiated the enquiry, and whether the employee must plead and prove prejudice.
- Whether, the enquiry not having been completed within the time stipulated by the Tribunal, the disciplinary proceedings could be continued beyond that time without obtaining an extension.
- Whether the appellant State should be granted one more opportunity to conclude the enquiry.
Provisions considered
- Rule 7 (including sub-rules (vii) and (x)), U.P. Government Servants (Discipline and Appeal) Rules, 1999Where a charge is denied the enquiry officer must call the witnesses proposed in the charge-sheet and record their oral evidence in the presence of the charged officer, who may cross-examine them; even in an ex parte enquiry the witnesses' statements must be recorded (as explained in Saroj Kumar Sinha). In both rounds the enquiry officer held the charges proved without examining a single witness or proving any document, in clear disregard of the rules. (¶¶ 2, 9, 10, 15, 16, 70)
- Rule 9(4), U.P. Government Servants (Discipline and Appeal) Rules, 1999The sub-rule was quoted: where the disciplinary authority proposes a penalty it must give the charged servant a copy of the enquiry report and its findings and invite his representation before passing a reasoned order. The report of 15/09/2014 was admittedly never furnished, nor produced before the Tribunal, the High Court or the Supreme Court; the respondent's non-participation did not dispense with the requirement, and the enquiry was wholly vitiated. (¶¶ 57, 58, 59, 60)
- Article 311(2) (as amended by the Constitution (42nd Amendment) Act, 1976), Constitution of IndiaFollowing the Constitution Bench in B. Karunakar, the right to receive the enquiry officer's report and to represent against its findings is part of the 'reasonable opportunity' at the first stage of the proceedings; the 42nd Amendment only dispensed with the second-stage opportunity to represent against the proposed penalty and advanced the point at which the representation against the report is considered. Rule 9(4) of the 1999 Rules corresponds to the pre-amendment procedure. (¶¶ 32, 33, 37, 38, 52, 58)
- Article 14, Constitution of IndiaUnder the Constitution Bench decisions in Tulsiram Patel, Olga Tellis and A.R. Antulay, violation of natural justice is a violation of Article 14 and non-observance of natural justice is itself prejudice; these decisions, which bind smaller Benches, make it difficult to insist on proof of prejudice where the enquiry report was withheld. (¶¶ 49, 50)
- Applicability to departmental enquiries, Indian Evidence Act, 1872The Act is not strictly applicable to departmental enquiries, but the principles of fair play flowing from it apply: witness evidence must be recorded in the delinquent's presence with an opportunity to cross-examine, and no document may be relied on without supplying a copy; a document does not prove itself and its contents must be spoken to by a competent witness. (¶ 14)
- Article 141, Constitution of IndiaThe Court clarified that its discussion of B. Karunakar was intended to contribute to the understanding of the law and that courts bound by Article 141 remain free to decide matters according to what they perceive to be the law declared in B. Karunakar. (¶¶ 24, 53)
Held
- Materials considered in a disciplinary enquiry must be brought on record in a manner known to law before they become legal evidence. Though the Evidence Act does not strictly apply, its principles of fair play do: witnesses must be examined in the presence of the delinquent with an opportunity to cross-examine, documents must be supplied, and the contents of documents relied on must be proved through a witness who can speak to them, since a document does not prove itself. Evidence gathered in a preliminary enquiry cannot be used in the regular enquiry. An enquiry that found guilt only on the charge-sheet, the reply and unproved audit documents, without examining any witness, could not form the basis of punishment; the first two issues were answered in the negative. (¶¶ 9, 10, 12, 13, 14, 15, 17, 18)
- B. Karunakar firmly entrenched the delinquent employee's right to receive the enquiry officer's report, where the enquiry officer is not the disciplinary authority, before the disciplinary authority decides on guilt; the right applies whatever the employer (government, public or private), whatever the service rules provide, whatever the punishment, and whether or not the employee asks for the report. An employer cannot scuttle this right by withholding the report. (¶¶ 33, 35, 37, 38)
- Read with S.K. Sharma, furnishing the enquiry report, though a procedural step, is of a mandatory character; it can be waived expressly or by conduct, but where the employee has not waived it the theory of substantial compliance and the test of 'prejudice' do not apply. The answers in B. Karunakar to the incidental questions (v), (vi) and (vii), which introduced the prejudice test, were necessitated by the anomaly in Mohd. Ramzan Khan and were intended to have limited application to matters already pending when the Constitution Bench decided; the answer to question (i) governs future cases and makes furnishing the report imperative. Applying the prejudice test where the report was admittedly never furnished goes against the grain of the Constitution Bench's answer to the basic question, and later decisions of lesser strength insisting on pleading and proof of prejudice sit uneasily with the Constitution Bench decisions holding that breach of natural justice is itself prejudice under Article 14. (¶¶ 39, 40, 41, 42, 43, 44, 49, 50)
- Proper course for a tribunal or court: when a punishment order is challenged on the ground that the enquiry report was not furnished, the employer should be required to justify the non-furnishing. If no valid explanation is given and the omission appears strategic or careless, the punishment should be set aside without insisting on proof of prejudice and the proceedings directed to resume from the stage of giving the employee an opportunity to respond to the report. If the employer shows a real but abortive effort or another acceptable justification, the prejudice test may be applied, but only after the report is served; where the employee has waived the requirement, the court may deal with the matter in its discretion. Applying the prejudice test without such a query to the employer is contrary to B. Karunakar. The Court added that it was offering an alternative perspective, not disputing established views, and that courts bound by Article 141 remain free to decide according to their understanding of B. Karunakar. (¶¶ 24, 51, 52, 53)
- On the facts, the enquiry report of 15/09/2014 was never furnished to the respondent and was never placed before the Tribunal, the High Court or the Supreme Court; an adverse presumption was drawn that it was withheld because it would have supported the respondent. Prejudice was self-evident and no proof of it was required; in any case the respondent could not be expected to demonstrate prejudice from a report he had never seen. The respondent's non-participation in the second round did not relieve the authority of Rule 9(4) and paragraph 26 of B. Karunakar, and the enquiry stood wholly vitiated. (¶¶ 54, 55, 56, 59, 60)
- Affirming the Full Bench of the Allahabad High Court in Abhishek Prabhakar Awasthy: where a court or tribunal fixes a time for concluding an enquiry, the employer may not disregard it and must seek extension, mere delay not nullifying the proceedings ipso facto. The Court clarified that extension should ordinarily be sought before expiry, though in exceptional cases an application may be made afterwards; if the delinquent objects to continuation beyond the stipulated time, the disciplinary authority should halt and apply for extension; even without objection, extension must be sought and obtained before the final order; and where the order carries a default clause that the proceedings will lapse, the authority loses jurisdiction unless the clause is recalled. Continuation without a bona fide attempt to seek extension could invite interdiction, subject to the facts of each case. Here, without extension, no valid punishment order could have been passed. (¶¶ 61, 62, 63, 64)
- Although the routine course when a punishment is set aside for breach of statutory rules is to remit the matter for resumption from the stage of vitiation (A. Masilamani), the court may decline a fresh enquiry where lapse of time or other supervening circumstances make it unfair (Allahabad Bank v. Krishna Narayan Tiwari). As no witness could be produced in either 2010 or 2014, the charges concerned incidents of 2004-05, the respondent had retired in 2010 and was 75 years old, the State had squandered the opportunity granted by the Tribunal, and co-delinquents had been let off with little or no punishment, no useful purpose would be served by reviving the proceedings; the Tribunal and the High Court were right in not granting another opportunity. (¶¶ 66, 67, 68, 69, 70, 71)
Result
Appeal dismissed; interim order vacated; the respondent held entitled to full retiral benefits from the date of superannuation without any deduction, provisional pension already received being adjustable against arrears; pensionary benefits to be computed and the balance released within three months of receipt of the judgment, failing which interest at 6% per annum will run and the High Court may proceed with the contempt proceedings; parties to bear their own costs.