Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4222 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 5950 OF 2007
HARYANA FINANCIAL
CORPORATION & ANR. … APPELLANTS
VERSUS
KAILASH CHANDRA AHUJA … RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The Haryana Financial Corporation
(hereinafter referred to as ‘the Corporation’),
being aggrieved by the decision of the High
Court of Punjab & Haryana dated November 6,
2006 in Civil Writ Petition No. 8299 of 2005
has approached this Court. According to the
appellant, the order passed by the High Court
is not in consonance with law laid down by this
2
Court in several cases, particularly, a
decision of the Constitution Bench of this
Court in Managing Director, ECIL, Hyderabad &
Ors. V. B. Karunakar & Ors., (1993) 4 SCC 727.
3. To appreciate the grievance voiced by
the Corporation, few relevant facts may be
stated;
4. The respondent herein (writ petitioner
before the High Court) Kailash Chandra Ahuja
was appointed as Technical Officer in the
Corporation in June, 1979. According to the
appellant-Corporation, he was given ‘warning’
in 1984. In 1993, he was working as Deputy
General Manager. In 1997, he was reprimanded.
On August 17, 1999, he was working as Branch
Manager at Branch Office, Rewari. The
Corporation initiated proceedings against the
writ-petitioner in accordance with Regulation
41 (1) and (2) of Punjab Financial Corporation
(Staff) Regulations, 1961 (hereinafter referred
to as ‘the Regulations’) on the allegations
enumerated in the Statement of Charges. The
3
statement related to commission and omission on
the part of the writ-petitioner. The writ-
petitioner submitted a reply on December 14,
1999. An Inquiry Officer was appointed who
submitted his report on December 15, 2000 and
exonerated the writ-petitioner of all the
charges. According to the Corporation, however,
the report of the Inquiry Officer suffered from
certain deficiencies. Hence, the Managing
Director of the Corporation asked the Inquiry
Officer vide a communication dated June 19,
2001 and sought clarification. The matter was
remanded to the Inquiry Officer with the advice
to clarify the points within 15 days. The
Inquiry Officer called the delinquent to appear
before him on August 7, 2001. The delinquent
appeared and participated in the proceedings
without any protest. The Inquiry Officer then
submitted his findings vide his report dated
September 5, 2001 holding the delinquent
guilty. A notice was thereafter issued by the
Managing Director of the Corporation to the
4
delinquent on December 18/20, 2001 to show
cause why he should not be dismissed from
service under Regulation 41 (1) (e) of the
Regulations. The delinquent filed his reply on
February 8, 2002. He was granted personal
hearing and was dismissed from service by a
speaking order dated April 4, 2002. The
delinquent preferred an appeal before the Board
of Directors of the Corporation under the
Regulations but the said appeal was also
dismissed by the Board by an order dated
January 27, 2005. The delinquent, therefore,
filed a writ petition in the High Court of
Punjab & Haryana which, as stated above, was
allowed by the High Court setting aside the
order dated April 4, 2002 passed by the
Corporation. It is this order which is
challenged by the Corporation in the present
appeal.
5. Notice was issued by this Court on
April 9, 2007. The respondent-writ petitioner
appeared through an advocate and waived service
5
of notice upon him. Time was granted to file
affidavit-in-reply as well as rejoinder.
Meanwhile, the order passed by the High Court
impugned in the present appeal was also stayed.
On January 10, 2008, the Registry was directed
to place the matter for final hearing on a non-
miscellaneous day. The matter thus has been
placed for final disposal before us.
6. We have heard learned counsel for the
parties.
7. The learned counsel for the
Corporation submitted that as is clear from the
order passed by the High Court, the respondent-
writ petitioner had raised a “short issue”
before the Court. It was contended that the
Disciplinary Authority i.e. Managing Director
did not furnish a copy of the inquiry report
before recording a finding that he had accepted
the finding of guilt recorded by the Inquiry
Officer in his inquiry report dated September
5, 2001. According to the learned counsel,
supply of inquiry report after the respondent
6
had been found guilty by the Inquiry Officer
was mandatory, in view of the fact that the
writ-petitioner had been exonerated by the
Inquiry Officer earlier vide his report dated
December 15, 2000. Reliance in this connection
was placed by the learned counsel for the writ-
petitioner on B. Karunakar , as on also two
decisions of the High Court of Punjab & Haryana
in M.S. Sandhu v. Haryana Vidyut Parsaran
Nigam Ltd., (2005) 4 SCT 628 and Ramesh Kumar
v. State of Haryana & Ors., (2006) 3 SCT 799.
8. On behalf of the Corporation, the
learned counsel contended that there was no
whisper in the writ petition that any prejudice
had been caused to the case of the writ
petitioner which was required to be shown as
per the ratio laid down in B. Karunakar cited
by the counsel for the writ-petitioner. It was
urged that it is only in those cases where a
Court or Tribunal comes to the conclusion that
non-supply of the report of the Inquiry Officer
had caused prejudice to the delinquent that it
7
would vitiate the action. If, on the other
hand, non-supply of report would have made ‘no
difference’ to the ultimate finding and
punishment imposed, the order of punishment
could not be interfered with.
9. The High Court held that supply of
report of the Inquiry Officer was an ‘essential
requirement’ and non-supply thereof resulted in
violation of principles of natural justice. It,
therefore, set aside the order of dismissal.
According to the counsel for the Corporation,
the High Court was wholly wrong in taking the
above view which is contrary to the decision of
the Constitution Bench of this Court in B.
Karunakar and the appeal deserves to be
allowed.
10. The learned counsel for the writ-
petitioner, on the other hand, supported the
order passed by the High Court. He contended
that the High Court was right in relying upon
various decisions referred to therein and in
setting aside the order of punishment by
8
granting liberty to the Corporation to take
appropriate proceedings in accordance with law.
No interference, therefore, is called for
against the said order in exercise of
discretionary jurisdiction under Article 136 of
the Constitution.
11. Having heard learned counsel for the
parties and having considered the rival
contentions, in our opinion, the appeal
deserves to be allowed.
12. Since only one question had been
raised before the High Court as well as before
us, we may clarify at the outset that we are
not entering into merits of the matter and
allegations and counter allegations by the
parties. A limited controversy before us is
whether the High Court was right in setting
aside the order of punishment merely on the
ground of non-supply of report of the Inquiry
Officer to the delinquent.
13. As held by this Court in Union of
India & Ors. V. Mohd. Ramzan Khan, (1991) 1 SCC
9
588, when Inquiring Authority and Disciplinary
Authority is not one and the same and the
Disciplinary Authority appoints an Inquiring
Authority to inquire into charges levelled
against a delinquent-officer who holds inquiry,
finds him guilty and submits a report to that
effect to the Disciplinary Authority, a copy of
such report is required to be supplied by the
Disciplinary Authority to the delinquent-
employee before an order of punishment is
imposed on him. It was also held that non-
supply of report of the Inquiry Officer to a
delinquent employee would be violative of
principles of natural justice. The Court
nd
observed that after the Constitution (42
Amendment) Act, 1976, second opportunity
contemplated by Article 311(2) of the
Constitution had been abolished, but principles
of natural justice and fair play required
supply of adverse material to the delinquent
who was likely to be affected by such material.
Non-supply of report of Inquiry Officer to the
10
delinquent would constitute infringement of
doctrine of natural justice. In B. Karunakar, a
three Judge Bench of this Court was called upon
to consider the effect of non-supply of Inquiry
Officer’s report to the delinquent. The
attention of the Court was invited to certain
decisions wherein a different note had been
struck by this Court. Reference was made in
this regard to a three Judge Bench decision of
this Court in Kailash Chander Asthana v. State
of U.P., (1988) 3 SCC 600, wherein it was held
that non-supply of the report would not ‘ ipso
facto’ vitiate the order of punishment in
absence of prejudice to the delinquent. Though
Mohd. Ramzan Khan was decided subsequently,
Kailash Chander Asthana was not brought to the
notice of the Court. The Bench, therefore, felt
that the matter should be placed before a
larger Bench and accordingly the Registry was
directed to place the papers before Hon’ble
Chief Justice of India so that an appropriate
action can be taken [ vide Managing Director,
11
ECIL v. B. Karunakar, (1992) 1 SCC 709].
Accordingly, the mater was placed before the
Constitution Bench.
14. The Constitution Bench observed that
the basic question of law which arose in the
matters was whether the report of the Inquiry
Officer appointed by the Disciplinary Authority
to hold an inquiry into the charges against the
delinquent employee was required to be
furnished to the employee to enable him to make
representation to the Disciplinary Authority
before such authority arrives at its own
finding with regard to the guilt or otherwise
of the employee and the punishment, if any, to
be awarded to him. On the basis of the above
fundamental issue, certain other incidental
questions were also raised by the Constitution
Bench which included the effect of non-supply
of Inquiry Officer’s report.
15. So far as the supply of report of the
Inquiry Officer is concerned, it was held by
the Constitution Bench that the delinquent
12
employee had a right to receive the Inquiry
Officer’s report and a denial thereof would
constitute breach of natural justice.
16. Speaking for the majority, Sawant J.
stated:
“Hence it has to be held that when the
enquiry officer is not the
disciplinary authority, the delinquent
employee has a right to receive a copy
of the enquiry officer’s report before
the disciplinary authority arrives at
its conclusions with regard to the
guilt or innocence of the employee
with regard to the charges levelled
against him. That right is a part of
the employee’s right to defend himself
against the charges levelled against
him. A denial of the enquiry officer’s
report before the disciplinary
authority takes its decision on the
charges, is a denial of reasonable
opportunity to the employee to prove
his innocence and is a breach of the
principles of natural justice ”.
(emphasis supplied)
17. The Court then considered the effect
of non-supply of Inquiry Officer’s report on
the delinquent.
18. The majority stated;
13
“The next question to be answered is
what is the effect on the order of
punishment when the report of the
enquiry officer is not furnished to
the employee and what relief should be
granted to him in such cases. The
answer to this question has to be
relative to the punishment awarded.
When the employee is dismissed or
removed from service and the inquiry
is set aside because the report is not
furnished to him, in some cases the
non-furnishing of the report may have
prejudiced him gravely while in other
cases it may have made no difference
to the ultimate punishment awarded to
him. Hence to direct reinstatement of
the employee with back-wages in all
cases is to reduce the rules of
justice to a mechanical ritual. The
theory of reasonable opportunity and
the principles of natural justice have
been evolved to uphold the rule of law
and to assist the individual to
vindicate his just rights. They are
not incantations to be invoked nor
rites to be performed on all and
sundry occasions. Whether in fact,
prejudice has been caused to the
employee or not on account of the
denial to him of the report, has to be
considered on the facts and
circumstances of each case. Where,
therefore, even after the furnishing
of the report, no different
consequence would have followed, it
would be a perversion of justice to
permit the employee to resume duty and
to get all the consequential benefits.
It amounts to rewarding the dishonest
and the guilty and thus to stretching
the concept of justice to illogical
14
and exasperating limits. It amounts to
an ‘unnatural expansion of natural
justice’ which in itself is
antithetical to justice ”.
(emphasis supplied)
19. Holding that it was incumbent on the
delinquent employee to show prejudice, the
majority held that non-supply of report of the
Inquiry Officer to the delinquent employee
would not by itself make the order of
punishment null and void or non est.
20. The majority concluded;
“ Hence, in all cases where the enquiry
officer’s report is not furnished to
the delinquent employee in the
disciplinary proceedings, the Courts
and Tribunals should cause the copy of
the report to be furnished to the
aggrieved employee if he has not
already secured it before coming to
the Court/Tribunal and give the
employee an opportunity to show how
his or her case was prejudiced because
of the non-supply of the report. If
after hearing the parties, the
Court/Tribunal comes to the conclusion
that the non-supply of the report
would have made no difference to the
ultimate findings and the punishment
given, the Court/Tribunal should not
interfere with the order of
punishment. The Court/Tribunal should
not mechanically set aside the order
15
of punishment on the ground that the
report was not furnished as is
regrettably being done at present. The
courts should avoid resorting to short
cuts. Since it is the Courts/Tribunals
which will apply their judicial mind
to the question and give their reasons
for setting aside or not setting aside
the order of punishment, (and not any
internal appellate or revisional
authority), there would be neither a
breach of the principles of natural
justice nor a denial of the reasonable
opportunity. It is only if the
Court/Tribunal finds that the
furnishing of the report would have
made a difference to the result in the
case that it should set aside the
order of punishment ”.
(emphasis supplied)
21. From the ratio laid down in B.
Karunakar , it is explicitly clear that the
doctrine of natural justice requires supply of
a copy of the Inquiry Officer’s report to the
delinquent if such Inquiry Officer is other
than the Disciplinary Authority. It is also
clear that non-supply of report of Inquiry
Officer is in the breach of natural justice.
But it is equally clear that failure to supply
a report of Inquiry Officer to the delinquent
16
employee would not ipso facto result in
proceedings being declared null and void and
order of punishment non est and ineffective. It
is for the delinquent-employee to plead and
prove that non-supply of such report had caused
prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the Court
on that point, the order of punishment cannot
automatically be set aside.
22. In the instant case, it is not in
dispute by and between the parties either
before the High Court or before us that a copy
of the report of Inquiry Officer was not
supplied to the delinquent-writ-petitioner.
While the contention of the writ petitioner is
that since failure to supply Inquiry Officer’s
report had resulted in violation of natural
justice and the order was, therefore, liable to
be quashed, the submission on behalf of the
Corporation is that no material whatsoever has
been placed nor a finding is recorded by the
17
High Court that failure to supply Inquiry
Officer’s report had resulted in prejudice to
the delinquent and the order of punishment was,
therefore, liable to be quashed.
23. The High Court, unfortunately, failed
to appreciate and apply in its proper
perspective the ratio laid down in B.
Karunakar, though the High Court was conscious
of the controversy before it. The Court also
noted the submission of the Corporation that
there was ‘no whisper’ in the writ petition
showing any prejudice to the delinquent as
required by B. Karunakar, but allowed the writ
petition and set aside the order of punishment
observing that in such cases, prejudice is
‘writ large’.
24. In our considered view, the High Court
was wrong in making the above observation and
virtually in ignoring the ratio of B.
Karunakar that prejudice should be shown by the
18
delinquent. To repeat, in B. Karunakar, this
Court stated;
“Whether in fact, prejudice has been
caused to the employee or not on
account of the denial to him of the
report, has to be considered on the
facts and circumstances of each case”.
25. It is settled law that principles of
natural justice have to be complied with. One
of the principles of natural justice is audi
alteram partem (“Hear the other side”). But it
is equally well settled that the concept
‘natural justice’ is not a fixed one. It has
meant many things to many writers, lawyers,
jurists and systems of law. It has many
colours, shades, shapes and forms. Rules of
natural justice are not embodied rules and they
cannot be imprisoned within the strait-jacket
of a rigid formula.
26. Before about six decades, in Russel v.
Duke of Norfolk, (1949) 1 AllER 109 : 65 TLR
225, Tucker, L.J. stated:
19
“There are, in my view, no words which
are of universal application to every
kind of inquiry and every kind of
domestic tribunal. The requirements of
natural justice must depend on the
circumstances of the case, the nature
of the inquiry, the rules under which
the tribunal is acting, the subject-
matter that is being dealt with, and
so forth”.
27. In the oft-quoted passage from Byrne
v. Kinematograph Renters Society, (1958) 2
AllER 579, Lord Harman enunciated;
“What, then, are the requirements of
natural justice in a case of this
kind? First, I think that the person
accused should know the nature of the
accusation made; secondly, that he
should be given an opportunity to
state his case; and thirdly, of
course, that the tribunal should act
in good faith. I do not think that
there really is anything more ”.
(emphasis supplied)
28. This Court has also taken similar
view. In Union of India v. P.K. Roy, AIR 1968
SC 850 : (1968) 2 SCR 196, speaking for the
Court, Ramaswami, J. observed:
20
“(T)he extent and application of the
doctrine of natural justice cannot be
imprisoned within the strait jacket of
a rigid formula. The application of
the doctrine depends upon the nature
of the jurisdiction conferred on the
administrative authority, upon the
character of the rights of the persons
affected, the scheme and policy of the
statute and other relevant
circumstances disclosed in the
particular case”.
29. In the leading case of A.K. Kraipak v.
Union of India, (1969) 2 SCC 262, Hegde, J.
stated;
“What particular rule of natural
justice should apply to a given case
must depend to a great extent on the
facts and circumstances of that case,
the framework of the law under which
the enquiry is held and the
constitution of the Tribunal or body
of persons appointed for that purpose.
Whenever a complaint is made before a
court that some principle of natural
justice had been contravened the court
has to decide whether the observance
of that rule was necessary for a just
decision on the facts of that case”.
30. Again, in R.S. Dass v. Union of India,
1986 Supp SCC 617, this Court said;
21
“It is well established that rules of
natural justice are not rigid rules;
they are flexible and their
application depends upon the setting
and the background of statutory
provision, nature of the right which
may be affected and the consequences
which may entail, its application
depends upon the facts and
circumstances of each case”.
31. At the same time, however, effect of
violation of rule of audi alteram partem has to
be considered. Even if hearing is not afforded
to the person who is sought to be affected or
penalized, can it not be argued that notice
would have served no purpose” or “hearing could
not have made difference” or “the person could
not have offered any defence whatsoever”.
32. In this connection, it is interesting
to note that under the English Law, it was held
before few years that non-compliance with
principles of natural justice would make the
order null and void and no further inquiry was
necessary.
22
33. In the celebrated decision of Ridge v.
Baldwin, 1964 AC 40 : (1963) 2 AllER 66, it was
contended that an opportunity of hearing to the
delinquent would have served no purpose.
Negativing the contention, however, Lord Reid
stated;
“It may be convenient at this point
to deal with an argument that, even
if as a general rule a watch
committee must hear a constable in
his own defence before dismissing
him, this case was so clear that
nothing that the appellant could
have said could have made any
difference. It is at least very
doubtful whether that could be
accepted as an excuse ” .
(emphasis supplied)
34. Wade and Forsyth in their classic
th
work, Administrative Law, (9 Edn.) pp. 506-
509 also stated that if such argument is
upheld, the Judges may be tempted to refuse
relief on the ground that a fair hearing could
have made no difference to the result. “But in
principle it is vital that the procedure and
the merits should be kept strictly apart, since
23
otherwise the merits may be prejudiced
unfairly ”. (emphasis supplied)
35. This Court expressed the same opinion.
In Board of High School v. Kumari Chitra,
(1970) 1 SCC 121, the Board cancelled the
examination of the petitioner who had actually
appeared at the examination on the ground that
there was shortage in attendance at lectures.
Admittedly, no notice was given to her before
taking the action. On behalf of the Board it
was contended that the facts were not in
dispute and therefore, ‘ no useful purpose
would have been served ’ by giving a show cause
notice to the petitioner. This Court, however,
set aside the decision of the Board, holding
that the Board was acting in a quasi-judicial
capacity and, therefore, it ought to have
observed the principles of natural justice.
36. In S.L. Kapoor v. Jagmohan, (1980) 4
SCC 379, rejecting the argument that observance
24
of natural justice would have made no
difference, this Court said;
“The non-observance of natural justice
is itself prejudice to any man and
proof of prejudice independently of
proof of denial of natural justice is
unnecessary. It ’ll comes from a
person who has denied justice that the
person who has been denied justice is
not prejudiced”. (emphasis supplied)
37. The recent trend, however, is of
‘prejudice’. Even in those cases where
procedural requirements have not been complied
with, the action has not been held ipso facto
illegal, unlawful or void unless it is shown
that non-observance had prejudicially affected
the applicant.
38. In Malloch v. Aberdeen Corporation,
(1971) 2 AllER 1278, Lord Reid said;
“(I)t was argued that to have afforded
a hearing to the appellant before
dismissing him would have been a
useless formality because whatever he
might have said could have made no
difference. If that could be clearly
demonstrated it might be a good
answer ”. (emphasis supplied)
25
39. Lord Guest agreed with the above
statement, went further and stated;
“A great many arguments might have
been put forward but if none of them
had any chance of success then I can
see no good reason why the respondents
should have given the appellant a
hearing, nor can I see that he was
prejudiced in any way ” .
40. In Jankinath v. State of Orissa,
(1969) 3 SCC 392, it was contended that natural
justice was violated inasmuch as the petitioner
was not allowed to lead evidence and the
material gathered behind his back was used in
determining his guilt. Dealing with the
contention, the Court stated;
“We have to look to what actual
prejudice has been caused to a person
by the supposed denial to him of a
particular right”. (emphasis supplied)
41. In B. Karunakar, this Court considered
several cases and held that it was only if the
26
Court/Tribunal finds that the furnishing of the
report “would have made a difference” to the
result in the case that it should set aside the
order of punishment. The law laid down in B.
Karunakar was reiterated and followed in
subsequent cases also [ vide State Bank of
Patiala v. S.K. Sharma, (1996) 3 SCC 363; M.C.
Mehta v. nion of India, (1999) 6 SCC 237].
42. In Aligarh Muslim University v.
Mansoor Ali Khan, (2000) 7 SCC 529, the
relevant rule provided automatic termination of
service of an employee on unauthorized absence
for certain period. M remained absent for more
than five years and, hence, the post was deemed
to have been vacated by him. M challenged the
order being violative of natural justice as no
opportunity of hearing was afforded before
taking the action.
43. Though the Court held that the rules
of natural justice were violated, it refused to
set aside the order on the ground that no
27
prejudice was caused to M. Referring to several
cases, considering theory of ‘useless’ or
‘empty’ formality and noting “admitted or
undisputed” facts, the Court held that the
only conclusion which could be drawn was that
had M been given a notice, it “would not have
made any difference” and, hence, no prejudice
had been caused to M.
44. In Ajit Kumar Nag v. General Manager
(PJ), Indian Oil Corporation Ltd, Haldia &
Ors., (2005) 7 SCC 764, speaking for a three
Judge Bench, one of us (C.K. Thakker, J.)
stated:
“We are aware of the normal rule that
a person must have a fair trial and a
fair appeal and he cannot be asked to
be satisfied with an unfair trial and
a fair appeal. We are also conscious
of the general principle that pre-
decisional hearing is better and
should always be preferred to post-
decisional hearing. We are further
aware that it has been stated that
apart from Laws of Men, Laws of God
also observe the rule of audi alteram
partem . It has been stated that the
first hearing in human history was
given in the Garden of Eden. God did
not pass sentence upon Adam and Eve
28
before giving an opportunity to show
cause as to why they had eaten the
forbidden fruit. [See R. v. University
of Cambridge, (1723) 1 Str 557] But we
are also aware that the principles of
natural justice are not rigid or
immutable and hence they cannot be
imprisoned in a straitjacket. They
must yield to and change with
exigencies of situations. They must be
confined within their limits and
cannot be allowed to run wild. It has
been stated: “ ‘To do a great right’
after all, it is permissible sometimes
‘to do a little wrong’.” [Per
Mukharji, C.J. in Charan Lal Sahu v.
Union of India, (1990) 1 SCC 613
( Bhopal Gas Disaster ), SCC p. 705,para
124.] While interpreting legal
provisions, a court of law cannot be
unmindful of the hard realities of
life. In our opinion, the approach of
the Court in dealing with such cases
should be pragmatic rather than
pedantic, realistic rather than
doctrinaire, functional rather than
formal and practical rather than
precedential ” . (emphasis supplied)
45. Recently, in P.D. Agrawal v. State
Bank of India & Ors., (2006) 8 SCC 776, this
Court restated the principles of natural
justice and indicated that they are flexible
and in the recent times, they had undergone a
‘sea change’. If there is no prejudice to the
29
employee, an action cannot be set aside merely
on the ground that no hearing was afforded
before taking a decision by the authority.
46. In Ranjit Singh v. Union of India,
(2006) 4 SCC 153, referring to the relevant
case-law, this Court said;
“ In view of the aforementioned
decisions of this Court, it is now
well settled that the principles of
natural justice were required to be
complied with by the disciplinary
authority. He was also required to
apply his mind to the materials on
record. The enquiry officer arrived
at findings which were in favour of
the appellant. Such findings were
required ( sic sought) to be
overturned by the disciplinary
authority. It is in that view of the
matter, the power sought to be
exercised by the disciplinary
authority, although not as that of
an Appellate Authority, but is akin
thereto. The inquiry report was in
favour of the appellant but the
disciplinary authority proposed to
differ with such conclusions and,
thus, apart from complying with the
principles of natural justice it was
obligatory on his part, in the
absence of any show-cause filed by
the appellant, to analyse the
materials on record afresh. It was
all the more necessary because even
CBI, after a thorough investigation
in the matter, did not find any case
30
against the appellant and thus,
filed a closure report. It is,
therefore, not a case where the
appellant was exonerated by a
criminal court after a full-fledged
trial by giving benefit of doubt. It
was also not a case where the
appellant could be held guilty in
the disciplinary proceedings
applying the standard of proof as
preponderance of the probability as
contrasted with the standard of
proof in a criminal trial i.e. proof
beyond all reasonable doubt. When a
final form was filed in favour of
the appellant, CBI even did not find
a prima facie case against him. The
disciplinary authority in the
aforementioned peculiar situation
was obligated to apply its mind on
the materials brought on record by
the parties in the light of the
findings arrived at by the inquiry
officer. It should not have relied
only on the reasons disclosed by him
in his show-cause notice which, it
will bear repetition to state, was
only tentative in nature. As the
Appellate Authority in arriving at
its finding, laid emphasis on the
fact that the appellant has not
filed any objection to the show-
cause notice; ordinarily, this Court
would not have exercised its power
of judicial review in such a matter,
but the case in hand appears to be
an exceptional one as the appellant
was exonerated by the inquiry
officer. He filed a show-cause but,
albeit after some time the said
cause was available with the
disciplinary authority before he
issued the order of dismissal. Even
31
if he had prepared the order of
dismissal, he could have considered
the show-cause as he did not leave
his office by then. The expression
“communication” in respect of an
order of dismissal or removal from
service would mean that the same is
served upon the delinquent officer”.
(See State of Punjab v. Amar Singh
Harika, AIR 1966 SC 1313)
47. From the aforesaid decisions, it is
clear that though supply of report of Inquiry
Officer is part and parcel of natural justice
and must be furnished to the delinquent-
employee, failure to do so would not
automatically result in quashing or setting
aside of the order or the order being declared
null and void. For that, the delinquent
employee has to show ‘prejudice’. Unless he is
able to show that non-supply of report of the
Inquiry Officer has resulted in prejudice or
miscarriage of justice, an order of punishment
cannot be held to be vitiated. And whether
prejudice had been caused to the delinquent-
employee depends upon the facts and
32
circumstances of each case and no rule of
universal application can be laid down.
48. In the instant case, no finding has
been recorded by the High Court that prejudice
had been caused to the delinquent-employee-
writ-petitioner. According to the High Court,
such prejudice is ‘writ large’. In our view,
the above observation and conclusion is not in
consonance with the decisions referred to
above, including a decision of the Constitution
Bench in B. Karunakar. The view of the High
Court, hence, cannot be upheld. The impugned
order, therefore, deserves to be set aside and
is accordingly set aside.
49. Since the High Court has not
considered the second question, namely, whether
failure to supply the report of the Inquiry
Officer had or had not resulted in prejudice to
the delinquent employee, ends of justice would
be met with if we remit the matter to the High
Court to decide the said question.
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50. For the foregoing reasons, the appeal
deserves to be allowed and is accordingly
allowed with the above observations. On the
facts and in the circumstances of the case,
however, there shall be no order as to costs.
…………………………………………………J.
(C.K. THAKKER)
NEW DELHI, …………………………………………………J.
JULY 08, 2008. (D.K. JAIN)