State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow v. Ram Prakash Singh

State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow v. Ram Prakash Singh

46. Imagine a scenario where the employer seeking to get rid of an inconvenient employee succeeds in its endeavour and dismisses him following an enquiry, flawed in itself, by relying on the report of enquiry without furnishing copy of the same to him. In such an eventuality, the dismissed employee while approaching a tribunal/ court for redress has to do so without having access to the materials considered in the report. This is best exemplified by the present case where the report of enquiry has neither been furnished to the respondent nor placed on record before all the adjudicatory fora. In the absence of such access, can the delinquent employee be expected to demonstrate prejudice suffered by him? We are not sure how the burden can be discharged by the employee in such a case. This lack of access to the report would severely hamper the ability of the employee to demonstrate ‘prejudice’ and to build a strong case for succeeding in his challenge to the order of punishment. Besides, the lengthy legal process could be agonizing, and especially without any earning, may not only lead to financial strain and diminished resolve but could eventually end up with the employee abandoning the challenge. Drawing from experience, we understand how employers take advantage and employ methods to drag on proceedings for years and thereby ensure that through the process of ‘wear and tear’, the employee (if he has been either dismissed or removed from service) loses steam and, inevitably, lacking interest in the challenge effectively gets thrown out of the legal arena by forces beyond his control.

47. These are vital considerations which, in our considered opinion, need to engage the mind of every court while deciding to apply the test of ‘prejudice’. In a battle between the mighty lion and the weak lamb when the former is in an overpowering position, should the courts lean in its favour and put the weak to the sword for not having demonstrated ‘prejudice’ when a brazen violation of the law declared by the Constitution Bench is brought to its notice? Why should the mighty not be made answerable as to why the report of enquiry has not been furnished and to bear whatever consequences that are bound to follow its failure, omission or neglect in this behalf? In a society governed by the rule of law and when the preambular promise is to secure equality and justice for all, the weak lamb is certainly entitled in law to demand that the ratio decidendi of B. Karunakar (supra) be followed to the ‘T’. We regret, reliance placed in some of the decisions primarily on certain English decisions on

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whether ‘opportunity would have served any purpose’, may not be appropriate for acceptance in our service jurisprudence.

48. Looked at from a different angle, it is unheard of and simply unacceptable to us that employers could brazenly disregard the law declared by the Constitution Bench and/or act in derogation of statutory rules, yet, argue that no prejudice was caused to the dismissed employee by reason of not giving him access to the enquiry report. If the answer to question (v) given in B. Karunakar (supra) is to be regarded as the final word, we are left to wonder whether it would have at all been necessary for the Constitution Bench to elaborately discuss the law on the subject, stress on the importance and need for the enquiry report to be furnished to the delinquent employee and to introduce a new regime with prospective effect. If the test of ‘prejudice’ were to be given primordial importance, the Constitution Bench could have, on the contrary, simply observed that post 20th November, 1990 [the date on which Mohd. Ramzan Khan (supra) was decided], if in case report of enquiry in a particular case were not furnished to the delinquent employee and upon the matter reaching the tribunal/court for adjudication at a subsequent stage, the employer is under no obligation to explain why the report has not been furnished and its action of taking disciplinary action has to be judged and could be interdicted only in the event the employee, on the touchstone of ‘prejudice’, were to succeed in proving that he had been denied reasonable opportunity to defend. The Constitution Bench’s careful consideration of question (i), viz. the need to furnish the enquiry report to a delinquent employee before disciplinary action is taken being an integral part of natural justice, the answer thereto would be rendered redundant if such an approach by the employers is permitted. Allowing employers to circumvent the law declared by the Constitution Bench and dilution of such declared law regarding the necessity, nay imperative, to furnish the enquiry report by interpretative exercises subsequently undertaken by Benches of lesser strength without bearing in mind other Constitution Bench decisions (we propose to refer to them briefly, immediately after this discussion) on the effect of breach of natural justice principles and the consequences that could visit an employee whose service is terminated if the report were not furnished in the first place is an unfortunate development which undermines the rule of law.

49. Just as Articles 14, 19 and 21 of the Constitution constitute a triumvirate of rights of citizens conceived as charters on equality,

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freedom and liberty, the trio of decisions of Constitution Benches of this Court in Union of India v. Tulsiram Patel,40 Olga Tellis v. Bombay Municipal Corporation41 and A.R. Antulay v. R.S. Nayak42 form the bedrock of natural justice principles being regarded as part of Article 14 of the Constitution and obviating the need to demonstrate ‘prejudice’ if a challenge were laid on the ground of breach of Article

14. In Tulsiram Patel (supra), it was held that violation of a principle of natural justice is violation of Article 14. The dictum of the three- Judge Bench in S.L. Kapoor v. Jagmohan43 that 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, was approved by the Constitution Bench in Olga Tellis (supra). No prejudice need be proved for enforcing the Fundamental Rights is the emphatic assertion in A.R. Antulay (supra).

50. These Constitution Bench decisions have stood the test of time. Without being overruled in any subsequent decision, the law continues to bind all Benches of lesser strength. Equally, it cannot be gainsaid that with the march of time and the progress made in the years since then, nuanced or refined approaches to applying natural justice principles may be necessary and appropriate in specific cases. There can be no quarrel with this approach. However, we find it difficult for us to be guided by the decisions insisting on application of the ‘prejudice’ principle in the wake of the aforesaid Constitution Bench decisions. Accepting such decisions of lesser strength would signal re-imposition of the legal regime pre-Mohd. Ramzan Khan (supra) when the employer was under no obligation to furnish the enquiry report. We are afraid, this could encourage mischievous employers to drain out its terminated employee by ensuring that copy of the enquiry report is not furnished.

51. Thus said, what is the way for reconciling the law laid down in the precedents discussed so far? Attempting to clear the confusion arising out of different understandings of the ratio decidendi of the decision in B. Karunakar (supra), we proceed to focus on the proper course for the tribunal/court to adopt when the issue reaches it for

40 (1985) 3 SCC 398 41 (1985) 3 SCC 545 42 (1988) 2 SCC 602 43 (1980) 4 SCC 379

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adjudication. In our opinion, whenever a challenge is mounted to an order of punishment on, inter alia, the ground that the report of enquiry has not been furnished, the tribunal/court should require the employer (Government, public or private) to justify non-furnishing of such report. This is a course, which again experience has shown, is seldom followed. If no valid explanation is proffered and the tribunal/ court suspects unfair motives (report has not been furnished as part of a strategic ploy or to advance an unholy cause or prompted by extraneous reasons) or carelessness, without much ado and without insisting for ‘prejudice’ to be demonstrated, the order of punishment should be set aside and the proceedings directed to resume from the stage of offering opportunity to the delinquent employee to respond to the enquiry report. Irrespective of ‘prejudice’ being demonstrated, no employer or for that matter anyone should be permitted to steal a march and gain any benefit by violating the law. In case the tribunal/court is satisfied that real effort was made by the employer but such effort remained abortive because the report could not be furnished to the employee for reason(s) beyond its control, or some other justification is placed on record, which is acceptable to the tribunal/court, the test of ‘prejudice’ is open to be applied but only after ensuring service of a copy of the enquiry report on the employee. In a case where the employee either expressly or by his conduct appears to have waived the requirement of having access to the report, it would be open to the tribunal/court to deal with the situation as per its discretion. However, the simplicitor application of the ‘prejudice’ test absent a query to the employer, as indicated above, in our opinion, would be in the teeth of the law laid down in B. Karunakar (supra).

52. We now sum up our understanding of the law declared in B. Karunakar (supra) and answer the four questions delineated in paragraph 26 (supra) compositely. Reading the declaration of law by the Constitution Bench regarding the imperative need to furnish the report of enquiry to the delinquent employee even when: (i) the relevant statutory rules are silent or against it, (ii) the punishment to be imposed is other than the punishment referred to in clause (2) of Article 311 of the Constitution, (iii) the employee does not ask for it, and (iv) the burden is cast on a private employer too, and the law requiring furnishing of the report being made to operate prospectively from the date the decision in Mohd. Ramzan Khan (supra) was rendered, thereby reinforcing the legal position that prevailed after

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the GoI Act was enacted but became unsettled later, there can be no two opinions that on and from 20th November, 1990 [i.e., when Mohd. Ramzan Khan (supra) was decided] it is the mandatory requirement of law that the report of enquiry has to be furnished to the delinquent employee. Taking a cue from S. K. Sharma (supra), we are inclined to the view that the requirement of furnishing the report of enquiry, though procedural, is of a mandatory character and the bogey argument of the employer to apply the test of ‘prejudice’ when the report of enquiry is not furnished cannot be of any avail to thwart the challenge of the delinquent employee. Such test could call for application, if from the facts and circumstances, it can be established that the delinquent employee waived his right to have the report furnished. Should satisfactory explanation be not proffered by the employer for its failure/omission/neglect to furnish the enquiry report, that ought to be sufficient for invalidating the proceedings and directing resumption from the stage of furnishing the report. No proof of prejudice for breach of a statutory rule or the principles of natural justice and fair play need be proved, unless there is a waiver, either express or by conduct, to of the right to receive the report. And, it is only in specific and not in all circumstances that proof of ‘prejudice’ ought to be insisted upon.

53. While concluding our discussion, we repeat what has been observed earlier. This discourse is intended, not to doubt existing points of view, but to contribute to the understanding of the law. To prevent misunderstandings and to provide clarity, we wish to make it clear that it would be open for all courts, bound by Article 141 of the Constitution, to decide matters coming up before them on the relevant topic in accordance with what they perceive is the law declared in B. Karunakar (supra).

54. Turning to the facts of the present appeal, we have noted how the appellant has conducted itself in proceeding against the respondent. Res ipsa loquitur. We have noted earlier that the report of enquiry dated 15th September, 2014 has never seen the light of the day.

55. Relying on the law declared in S.K. Sharma (supra) which, in turn, relied on B. Karunakar (supra), we hold that prejudice is self-evident and no proof of prejudice as such is called for in this case.

56. Assuming that ‘prejudice’ has to be additionally shown, such question at least does not arise here because we are also disabled from looking into the said report. Much of what has been argued by

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learned counsel for the appellant pales into insignificance by reason of the neglect of the appellant to even place on record before us the report of enquiry. We draw adverse presumption and hold that there is a purpose behind withholding the report. The report, if produced, would have supported the contention of the respondent and hence, conveniently, it has not been produced before any fora.

57. It would also be beneficial at this juncture to read the rules and regulations which govern the respondent’s employment with the appellant. Rule 9 of the 1999 Rules ordains that:

9. Action on Enquiry Report – (1) *** (2) *** (3) *** (4) If the disciplinary authority having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the enquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the enquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant. (emphasis ours)

58. It is clear, on a bare reading of Rule 9, that the procedure contemplated therein corresponds to the procedure that was ordinarily followed in conducting disciplinary proceedings prior to amendment of Article 311 by the Constitution (42nd Amendment) Act, 1976. As held in paragraph 27 of B. Karunakar (supra), where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary

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State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow v. Ram Prakash Singh

authority arrives at its conclusions on the basis of the evidence, enquiry officer’s report and the delinquent employee’s reply to it with regard to his alleged guilt. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions reached at the first stage. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee’s right to receive the report is, thus, a part of the reasonable opportunity of defending himself in the first stage of the enquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.

59. In the present case, except that the respondent had not participated in the second round of enquiry and, hence, the disciplinary authority was not under obligation to furnish him the enquiry report, no other worthy explanation is forthcoming as to why such report was not furnished to the respondent. Assuming arguendo that the respondent had without justification stayed away from the enquiry, the disciplinary authority could not have considered the report of the Enquiry Officer in view of what has been held in paragraph 26 of B. Karunakar (supra) as well as Rule 9(4) of the 1999 Rules. Also, since the report of enquiry has been withheld by the appellant at all three tiers, it is preposterous that he would be in a position to plead and prove prejudice. No such question does arise here.

60. We, thus, hold while answering the third issue that there has been blatant disregard by the appellant of not only principles of natural justice and the judicial command in B. Karunakar (supra) by not furnishing the enquiry report but also by not following the applicable statutory rule. The enquiry, therefore, stands wholly vitiated.

61. The fourth issue requires us to consider Abhishek Prabhakar Awasthi (supra), a decision of the Full Bench of the High Court. Being a Full Bench decision, obviously the Tribunal as well as the Division Bench of the High Court was bound thereby. The Full Bench rendered such decision upon considering, inter alia, the decision of this Court in Union of India and Others v. Satyendra Kumar Sahai and Another.44 We may only notice the answers to the questions referred to the Full Bench, reading as follows:

44 (2005) 12 SCC 355

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“(A) Question No. (a): We hold that if an enquiry is not concluded within the time which has been fixed by the Court, it is open to the employer to seek an extension of time by making an appropriate application to the Court setting out the reasons for the delay in the conclusion of the enquiry. In such an event, it is for the Court to consider whether time should be extended, based on the facts and circumstances of the case. However, where there is a stipulation of time by the Court, it will not be open to the employer to disregard that stipulation and an extension of time must be sought; (B) Question No. (b): The judgment of the Supreme Court in the case of Suresh Chandra (supra) as well as the judgment of the Division Bench of this Court in the case of Satyendra Kumar Sahai (supra) clearly indicate that a mere delay on the part of the employer in concluding a disciplinary enquiry will not ipso facto nullify the entire proceedings in every case. The Court which has fixed a stipulation of time has jurisdiction to extend the time and it is open to the Court, while exercising that jurisdiction, to consider whether the delay has been satisfactorily explained. The Court can suitably extend time for conclusion of the enquiry either in a proceeding instituted by the employee challenging the enquiry on the ground that it was not completed within the stipulated period or even upon an independent application moved by the employer. The Court has the inherent jurisdiction to grant an extension of time, the original stipulation of time having been fixed by the Court itself. Such an extension of time has to be considered in the interests of justice balancing both the need for expeditious conclusion of the enquiry in the interests of fairness and an honest administration. In an appropriate case, it would be open to the Court to extend time suo motu in order to ensure that a serious charge of misconduct does not go unpunished leading to a serious detriment to the public interest. The Court has sufficient powers to grant an extension of time both before and after the period stipulated by the Court has come to an end”.

62. While affirming the aforesaid view of the Full Bench, we would like to provide clarification on certain points not touched by such

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State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow v. Ram Prakash Singh

bench. First, in view of unseen institutional hurdles that can slow down swift action, it may not always be possible for the disciplinary authority in each such case where a fixed time has been stipulated by a tribunal/court to conclude the proceedings to apply and seek extension of time before expiry of such time although there can be no gainsaying that applying and obtaining an extension before expiry is eminently desirable. In exceptional cases, even after expiry of the stipulated time, such an application can be moved; and, depending on the cause shown for inability or failure to conclude the proceedings within the time stipulated and also for not applying for extension before expiry, the tribunal/court may, in its discretion, allow or reject the prayer for extension. If the application is rejected, the proceedings cannot be carried forward unless a superior court, reversing the order of rejection, permits the disciplinary authority to so proceed. Secondly, if the delinquent employee objects to continuation of proceedings beyond the time stipulated, the disciplinary authority without proceeding further ought to apply for extension of time and may not go ahead till such time its prayer for extension is granted on such application. Proceeding despite objection and without there being an extension could give rise to apprehensions of bias. Therefore, applying for extension upon halting the proceedings awaiting order on the application would be an advisable course of action to balance the interests of both the employer and the employee. Thirdly, even if the delinquent employee has not objected to continuation of proceedings beyond the time stipulated by the tribunal/court but before the final order is passed in the proceedings, the disciplinary authority would be bound to seek and obtain extension of time. This is for the simple reason that the sanctity of the orders of tribunals/courts cannot be disrespected by errant parties. The dignity of the judicial process would be seriously eroded and there would be nothing left of the rule of law if orders of tribunals/courts, validly made, are disobeyed and the disobedience is encouraged by being indulgent. Finally, we hasten to add that if a tribunal/court stipulates a fixed time by which an enquiry or proceedings for disciplinary action ought to be concluded coupled with a rider that, in default, the enquiry/ proceedings will stand lapsed, the disciplinary authority in such a case would cease to have the jurisdiction to proceed further unless, of course, citing genuine grounds, a recall of such default clause is sought and obtained to proceed further in accordance with law.

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63. We also hold that continuation of disciplinary proceedings beyond the time stipulated by a tribunal/court could invite interdiction if no bona fide attempt is shown to have been made to seek an extension of time. However, much would depend on the facts of each case and it may not be possible to lay down a common formula applicable to each case. In an exceptional case, the tribunal/court would have the discretion to overlook the laxity and make such direction as it deems fit in the circumstances.

64. The answer to the fourth issue, in view of our discussion, has to be in favour of the respondent and against the appellant. Without an extension of time, no order of punishment could have been validly made and the grievance of the respondent in this behalf is absolutely legitimate.

65. What survives for decision is now the fifth and final issue.

66. It is clear as day-light that the appellant despite being given an opportunity to proceed in accordance with law failed to utilise such opportunity. The respondent has experienced 75 (seventy-five) summers, and is now in the winter years of his life.

67. There are two decisions of this Court, from which guidance could be had.

68. In A. Masilamani v. LIC,45 this Court held: “16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same.”

69. The decision of this Court in Allahabad Bank v. Krishna Narayan Tiwari46 also throws light on the approach to be adopted but in a more nuanced manner than what was held in A. Masilamani (supra). Paragraph 8 of the decision reads as follows: “8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either

45 (2013) 6 SCC 530 46 (2017) 2 SCC 308

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State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow v. Ram Prakash Singh

procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.” (emphasis ours)

70. Respondent, undoubtedly, was denied a reasonable opportunity to defend himself in the enquiry by the appellant, as ordained by the 1999 Rules. The manner in which the disciplinary proceedings were conducted and continued against the respondent did not satisfy the requirements of ‘due process’. The flaws creeping in such proceedings have rendered the same wholly illegal. The routine course of action in a case, such as the present, where an order of punishment is set aside on grounds of breach of statutory rules and the charged officer is not acquitted on merits, is to remit the case to the disciplinary authority and direct resumption from the stage the proceedings is found to stand vitiated.

71. This, in this case, would mean reverting to the stage of production of witnesses on behalf of the department. When not a single witness could be produced for examination in 2010 and 2014, we do not think that witnesses would now be available to support the charges. Even otherwise, these proceedings have certain incidents of 2004-05 as the origin. Having regard to the lapse of time since then coupled with the retirement of the respondent from service in 2010 and, more particularly, when the appellant despite an earlier opportunity granted by the Tribunal has failed to avail the same by continuing the enquiry in accordance with law, it would be highly unfair and unjust to subject the respondent to face the enquiry once again. Gravity of the offence alleged to have been committed is certainly a vital consideration; however, repeated opportunities cannot be claimed without there being overwhelming public interest warranting such

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opportunity. No doubt, the respondent was charged with involvement in a financial scam but a line has to be drawn. Or else, it could be an unending affair till such time based on a legal and valid report of enquiry, the disciplinary authority passes an appropriate order. On facts, we are satisfied that second opportunity was not required to be given. Also, we have noticed from the materials on record that two of the respondent’s colleagues (one of them a senior officer) who were also proceeded against have been practically let off with no punishment or punishment of stoppage of increments. Thus, we are satisfied that no useful purpose will be served by reviving the disciplinary proceedings and in remitting the case to the appellant. On the contrary, the issue must be given a quietus because the Tribunal or the High Court did not commit any illegality. We hold that the Tribunal and the High Court were correct and justified in not granting one more opportunity to the appellant to resume proceedings from the stage invalidity in the proceedings was detected. The impugned order of the High Court, not suffering from any legal infirmity, does not warrant any interference and deserves to be upheld.

Conclusion

72. For the foregoing reasons, we find no merit in this appeal. The same is, accordingly, dismissed. Interim order stands vacated.

73. The respondent shall be entitled to full retiral benefits from the date of his superannuation without any sum being deducted. However, provisional pension received by him may be adjusted with the arrears. Let the pensionary benefits be computed and the balance sum of pension together with other retiral benefits be released in favour of the respondent as early as possible, but positively within three months from date of receipt of a copy of this judgment and order. In default, the sum payable to the respondent shall carry interest @ 6% per annum and the High Court too shall be free to carry the contempt proceedings forward.

74. Parties shall, however, bear their own costs.

Result of the case: Appeal dismissed.