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Article 311(2) in The Constitution Of India 1949
Article 309 in The Constitution Of India 1949
State Of Punjab vs Bhagat Ram on 9 October, 1974
Joginder Nath And Ors vs Union Of India And Ors on 31 October, 1974
The Administrative Tribunals Act, 1985
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Commissioner Of Police & Ors. vs S.I. Dharam Pal on 20 May, 2013

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Supreme Court of India
State Of U.P. & Ors vs Saroj Kumar Sinha on 2 February, 2010
Author: S S Nijjar
Bench: V.S. Sirpurkar, Surinder Singh Nijjar

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 254 OF 2008

STATE OF U.P. & ORS. .APPELLANT(S)

VERSUS

SAROJ KUMAR SINHA ....RESPONDENT(S)

JUDGMENT

SURINDER SINGH NIJJAR, J.

This appeal has been filed by the State of U.P.

challenging the order passed by the High Court of

Judicature at Allahabad, Lucknow Bench, Lucknow in Writ

Petition No.46 (S/B) of 2005 whereby the High Court allowed

the writ petition of the respondent by quashing and setting

aside the order of his removal dated 24.12.2004 and further

directing his reinstatement in service with all consequential

benefits.

2. The respondent had been in the service of the

appellant since 17.5.1971. During the period 6.1.2001 to

12.2.2001 and from 17.3.2001 to 28.4.2003 he was posted

as Executive Engineer at Construction Division-I, Public

Works Department (P.W.D.), Rai Barielly. While functioning 2

at Rai Barielly, he was served with the charge sheet dated

24.2.2001 under Rule 7 of the U.P. Government Servant

(Discipline & Appeal) Rules, 1999 (hereinafter referred to as

1999 Rules) making serious allegations of misconduct

against him.

3. The respondent having been initially selected through

the Lok Sewa Ayog, U.P. was appointed as an Assistant

Engineer in the Public Works Department on 17.5.1971 in a

substantive capacity. In due course he was promoted as

Executive Engineer.

4. We may notice here that the 1999 Rules have been

promulgated by the Governor of U.P. in exercise of the

powers conferred by the proviso to Article 309 of the

Constitution of India. The Rules prescribe detailed

procedure to be followed in matters of enforcing discipline

and imposing penalties/punishments against government

servants in U.P., in cases of proven misconduct. Rule 3 gives

a list of minor and major penalties that may be imposed by

the appointing authority on the government servants.

Removal from service is a major penalty. Rule 4 provides

that the government servant may be suspended in case an

enquiry is contemplated against him. In the present case,

the respondent was suspended on 5.2.2001 prior to the 3

issue of the charge sheet dated 24.02.2001. We presume it

was in contemplation of the forthcoming disciplinary

proceedings against him. Rule 7 prescribes in detail, the

procedure and the manner in which an enquiry shall be

conducted before imposing any major penalty on a

government servant. Rule 7 sub rule (2) provides the facts

constituting the misconduct on which it is proposed to take

action shall be reduced in the form of definite charge or

charges to be called charge sheet. This charge sheet has to

be approved by the disciplinary authority. Rule 7 sub rule

(3) further provides that the charge(s) framed shall be so

precise and clear as to give sufficient indication to the

charged government servant of the facts and circumstances

against him. It is mandatory that the proposed documentary

evidence and the name of witnesses proposed to prove the

charges together with any oral evidence(s) that may be

recorded be mentioned in the charge sheet. Thereafter

under Rule 7 sub rule (4) the government servant is given an

opportunity to put in a written statement, of his defence,

within a specified period of time which shall not be less than

15 days. The government servant is also required to indicate

whether he desires to cross examine any witnesses

mentioned in charge sheet. Thereafter he is to be informed 4

that in case he does not appear or file the written statement

it will be presumed that he does not intend to furnish any

defence. In such circumstances the enquiry shall proceed ex

parte. Sub rule 5 of Rule 7 mandates that the copies of the

documentary evidence mentioned in the charge sheet has to

be served on the government servant along with the charge

sheet. The aforesaid sub rule is as under:

"(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer."

5. A perusal of the aforesaid rule would clearly show that

the disciplinary authority is duty bound to make available all

relevant documents which are sought to be relied upon

against the government servant in proof of the charges. It is

only when the charge sheet together with documents is

supplied that the government servant can be said to have 5

had an effective and reasonable opportunity to present his

written statement of defence.

6. Keeping in view the mandate of the aforesaid sub rule

the respondent made a written request to the appellant

demanding copies of the documents relied upon in the

charge sheet. This representation was dated 10.6.2001. In

spite of the mandate of the 1999 Rules neither the

disciplinary authority nor the enquiry officer made the

documents available to the respondent rather a reminder

was issued to him by the enquiry officer on 15.6.2001 to

submit the reply to the charge sheet.

7. Apprehending that the inquiry officer may be biased

respondent submitted a representation on 19/6/2001 to the

Government for change of the inquiry officer. This request of

the respondent was accepted by the Government by office

memo dated 22.9.2001. It later transpired that the inquiry

officer, Mr. I.D. Singhal, had already completed the inquiry

report on 3.8.2001 whereas the new inquiry officer, G.S.

Kahlon was appointed on 22.9.2001. The respondent only

came to know about the existence of inquiry report dated

3.8.2001 in the month of April, 2003.

8. Being unaware of the inquiry report dated 3.8.2001

respondent made the representation dated 6.10.2001 to the 6

new inquiry officer, G.S. Kahlon praying for supply of the

relevant documents numbering 19 to enable him to prepare

an appropriate reply to the charge sheet and to prepare his

defence. Since, no response was received from the inquiry

officer the respondent sent a reminder dated 22.11.2001.

The last reminder submitted by the respondent is dated

3.3.2002.

9. The respondent later came to learn that the inquiry

officer had addressed a communication to the Government

dated 8.4.2002 stating that the inquiry report dated

3.8.2001 submitted by the former inquiry officer, Mr. I.D.

Singhal "seems to be correct" because the delinquent officer

should be deemed to have accepted the charges levelled

against him inasmuch as he had not submitted the

reply/explanation to the charge sheet. Based on the inquiry

report dated 8.4.2002, which merely reiterated the findings

in the inquiry report dated 3.8.2001, respondent was served

a show cause notice dated 29.4.2003.

10. At this stage the respondent challenged the issuance

of the show cause notice in Civil Writ Petition No.937 of

2003. The respondent had sought quashing of the two

inquiry reports as well as the show cause notice. He also

made a prayer that a fresh inquiry be conducted by giving 7

appropriate opportunity to him to submit his defence. The

aforesaid writ petition was disposed of with the following

order:

"We do not intend to interfere with the matter but would like to observe that we have not adjudicated the matter of the petitioner on merits nor we intend to observe that the case set up by the petitioner is correct on merit, therefore, it will be open to the petitioner to put his case before the authority concerned while submitted his reply to the Show Cause Notice. In case such a reply is given within a period of 15 days, the same shall be considered before passing any final orders in the matter."

11. The respondent furnished the certified copy of the

aforesaid order to the appellant on 25.7.2003. In this

communication respondent also mentioned that he would

soon submit a detailed representation/reply in response to

the show cause notice dated 29.4.2003. He accordingly

submitted the representation on 6.8.2003 briefly touching

upon the circumstances in which the aforesaid two inquiries

were held. He pointed out that the aforesaid two inquiries

had been held in patent violation of principles of natural

justice, fairness and justice, as well as the basic

requirements of law relating to departmental inquiry. The

respondent reiterated his utter helplessness in making an

effective reply to the show cause notice as he had not been

supplied the relevant documents in spite of numerous 8

representations and reminders. He again made a plea for

supply of documents.

12. Ultimately the respondent was served a copy of

communication dated 19.11.2003 from the office of the

Executive Engineer (Prantiya Khand), P.W.D. Rai Bareilly

addressed to the Executive Engineer (Nirman Khand-I),

P.W.D., Rai Bareilly directing supply of the copies of the

relevant documents to the respondent. A perusal of this

letter would clearly show that the documents were not

available in the office of the Executive Engineer (Nirman

Khand-I). The observations made by the Executive Engineer

(Prantiya Khand) in his communication dated 19.11.2003

are as under:

"Therefore, you are requested to collect the aforesaid three letters issued from the Government level and five letters issued from the level of Engineer-in-Chief level and two letters from your own level and as per the direction by the Government send the same to Sh. S.K. Sinha, Executive Engineer at his Lucknow address."

13. Inspite of this direction the documents were not

supplied. The respondent therefore again made a

representation to the inquiry officer on 30.11.2003 for

supply of certified photocopies of the relevant documents. 9

14. It was not disputed before the High court nor is it

disputed before us that the documents were not supplied to

the respondent. In fact, in the counter affidavit filed before

the High Court, in reply to the grievance made by the

respondent in the writ petition, about non-supply of the

documents, it has been stated as under:

"Petitioner has requested for supply of certain documents to the enquiry officer regarding which it is stated that the petitioner has been informed that the documents

pertains to the division in which petitioner has been posted as Executive Engineer. Therefore, it was not required to supply the same as the documents were in his custody and the petitioner has deliberately delayed the filing of reply. Therefore, Enquiry Officer has sent the enquiry report after the completion of enquiry to the Govt. on the basis of documents on 03.08.2001."

15. Thereafter the then Principal Secretary, PWD, Shri

Chandra Pal addressed a communication on 16.4.2004 to

the Secretary of Public Service Commission, U.P., Allahabad

recommending and proposing the punishment of removal

from service as well as recovery of the sum of Rs.1,29,600/-

be inflicted on the respondent. Aggrieved by the

recommendation the respondent addressed a representation

to the Commission setting out the entire factual situation

vide communication dated 30.5.2004.

10

16. Further more, the respondent again moved the

Allahabad High Court by preferring Civil Writ Petition No.793

(SB) of 2004. In this writ petition respondent had made a

prayer to restrain the appellant from taking any final

decision with regard to the proposed removal of the

respondent from service. In the aforesaid writ petition, the

Division Bench passed an interim order on 17.6.2004 with

the observations as under:

"In the meantime, opposite parties no.1 and 2 are expected to ensure the compliance of the order passes by the Division Bench of this Court on 23.7.2003 as contained in Annexure No.6 of this writ petition. Further representation of the petitioner, if submitted in pursuance of the order passed by this Court on 23.7.2003, shall be considered before conclusion of the departmental inquiry and passing final order."

17. It is the claim of the respondent that despite the pre-

emptory direction of the High Court in the aforesaid order

appellant-Government passed the order of removal dated

24.12.2004 removing the respondent from service and

directed recovery of Rs.1,29,600/- from him. Passing of the

aforesaid order was brought to the notice of the High Court

by the respondent, which by order dated 12.1.2005 directed

that no recovery shall be made from the respondent

pursuant to the order of removal.

11

18. Upon due consideration of the extensive pleadings of

the parties, the Division Bench has recorded the following

conclusions:

"After hearing the rival submission of learned counsel for the parties as well as the averments made in the affidavits, we are of the view that the inquiry officer has not afforded opportunities to the petitioner insofar as he fails to supply the documents to the petitioner which he has relied while framing the charges and further the petitioner was not afforded opportunity to lead the evidence and also denied the opportunities to cross-examination of the person. The inquiry officer has also failed to prove the charges during the inquiry proceedings by the recording any evidence. Thus, the inquiry is vitiated and is violation of principle of natural justice."

19. With these observations the writ petition has been

allowed. The appellant has been directed to reinstate the

respondent with all consequential benefits. However, the

State was granted liberty to conduct fresh inquiry in

accordance with law and the principles of natural justice.

20. We have heard the learned counsel for the parties.

21. We have noticed at some length the sequence of events

and the efforts made by the respondent to receive copies of

the documents which were relevant for the preparation of his

defence in the departmental inquiry. As noticed earlier all

the requests made by the respondent fell on deaf ears. In 12

such circumstances, the conclusions recorded by the High

Court were fully justified.

22. Copies of the documents which formed the foundation of

the charge sheet against the respondents have been denied

to the respondent on the lame excuse, as projected in the

pleadings of the appellant, at different stages before the High

Court as well as this Court, that the respondent, at the

relevant time, was posted in the same division and the

documents could have been received by him and the reply

could have been given. According to the appellant all the

concerned documents were with the Division in which the

petitioner (respondent herein) was posted as Executive

Engineer. In the counter-affidavit filed in the High Court it is

specifically mentioned that the documents pertain to the

same division in which the respondent had been posted as

Executive Engineer and therefore he being in knowledge and

custody of the said documents, there was no requirement for

the said documents to be supplied to the respondent. The

very same submission has been reiterated before us by the

learned Counsel of the Appellants. In our opinion, the

submission is without any basis as the respondent had been

suspended on 5.2.2001. Even if the respondent had

continued in the same department it would not have been 13

possible for him to take the custody of the documents as he

would no longer be in charge of the office. Further more, it is

evident from the letter dated 19.11.2003 that the documents

had to be collected from different offices and made available

to the respondent. This fact is so mentioned in the letter of

the Executive Engineer. In such circumstances, we are

unable to accept the submission of the learned counsel for

the appellants that it was possible for the respondent to

make an effective representation against the charge sheet.

23. At this stage it would be appropriate to notice the

charges that had been framed against the respondent which

are as under:

"I. Work pertaining to Salon Jagat Pur Road, had been given to Sri Jitendra Mohan Bajpai, Contractor vide Tender No.5/AE-2 dated 10.06.1996 through 3054-PW Work Plan. The last payment of the Tender has been paid by the then Executive Engineer Sri Akash Deep Sonkar and accordingly payment of Rs.193047/- was to be paid vide cheque No.13/256064 dated 02.08.1996. Thereafter you have made this payment through No.142 dated 31.12.1998 to the amount of Rs.193047 through Cheque No.78/001355 dated 31.12.1998. At page 138 of the Cash Book Part-73, Entry No. illegible has been made. You have deliberately made aforesaid entry in order to cause loss to the Govt. and had made the payment twice through voucher No.142 for the amount 193047 dated 31.12.1998 and the amount of Rs.193047 has been changed to 134305. Therefore the payment of Rs.58742 which has already made 14

has been shown to be not paid in the aforesaid entry.

In this manner you have deliberately

caused loss to the Government by the fraudulent act conspiring for the same and had recovered Rs.58742/- from the contractor through voucher No.141 dated 21.3.2000, reason for which has been mentioned that Rs.58742 has been deducted due to excess payment made for the work at Salon Jagat Pur Road through voucher No.142 dated 31.12.1998. Nowhere in voucher No.142 dated 31.12.1998 it is mentioned that due to what reason deduction has been made after the issuing of cheque regarding the amount to be paid which shows bad intention on your part. You have made wrong entries regarding deduction mention in the voucher amount which is proved to be violation of financial handbook Section-5(Part-1) para 4 D and 83. Voucher No.141 dated 31.03.2000 and entry to such effect proves that the Divisional Accounts Officer has issued the cheque of Rs.0185777/- regarding the aforesaid payment through cheque and the cheque for amount Rs.0185777/- has been passed by the Assistant Engineer. At the time of issuing cheque deduction of Rs.58742/- from the amount to be paid makes your conduct suspicious and you are found responsible for the misconduct in this regard. Therefore, you are found guilty of misconduct according to Para 3 U.P. Govt. Servant Conduct Rules 1956.

II. You had passed order for supply of mobile patcher 6 to M/s B.N. Traders, Karhal Mainpuri through letter Memo-2/Camp-

72-99 dated 17.07.1999, M/s B.N. Traders, Karhal Mainpuri had submitted receipt No.149 regarding the aforesaid supply. The supply has been passed for the amount of Rs.129600/- by the Asstt. Engineer and had been passed by you for the amount of Rs.129600/- vide Cheque No.96/002075 dated 16.11.1999. The

Cheque dated 16.11.1999 has been issued 15

to your name which has been provided for the payment to B.N. Traders to Bank

draft. In the place of this cheque you had issued Cheque No.005/003492 dated

13.11.1999 for Rs.129600/- to M/s B.N. Traders and had to be encashed by them. It is clear from the documents that the original cheque dated 31.11.1999 has

been cut and self has been inserted and the cheque has been encashed by you. In the counter filed of cheque book name of M/s B.N. Trader had been mentioned.

Therefore, the cheque has been wrongly encashed by you after making fraud entry by self name and the amount has not been taken in cash book. Therefore, the forgery in this regard is proved. You have made bank drafts in favour of M/s B.N. Traders on 08.03.2000 for Rs.129600/- from State Bank of India, Rai Bareilly. In the application of form of the draft the name of M/s B.N. Traders is mentioned whereas the order regarding supply of the draft to M/s B.N. Traders, Karhal, Mainpuri has been made in favour of the firm. Therefore bank draft was to be sent on the address of Mainpuri. M/s B.N. Traders, Karhal, Mainpuri had informed Chief Engineer, Lucknow on 28.07.2000 that you have

made payment at the address of firm in Mainpuri. In this regard the bank draft has been made in the name of M/s B.N. Traders and the draft amount has been received in the name of your relative and no payment as such has been made to

M/s B.N. Traders. You had cut the cheque and had violated Para 77 of the financial handbook Section 6 and Para 19- 22 of financial handbook Section 5, Part-I. Receiving of payment after cutting the name of firm from the cheque and

entering our own name (self) shows that the payment had been received after

committing fraud. Again in order to conceal this Act you had made draft

16

No.PL00008/392289 dated 08.03.2000 for Rs.129600/- from SBI, Rai Bareilly. The bank draft had been made for the address of Lucknow of the firm not of the address Karhal, Mainpuri so that the fraud can be committed and no payment as such has

been made to the firm. The firm has

alleged that you had received payment after committing fraud therefore, you are found guilty and misconduct regarding the misappropriation of amount of Rs.129600/- after committing fraud on the documents and violating the financial rules. You are also held guilty for mis- conduct according to para 3 U.P. Govt. Servant Conduct Rules 1956.

III. Case No.37/98 has been instituted for adjudication between M/s Indian Coal

Suppliers vs. Govt. of U.P. The case has been decided on 05.01.2000 according to which demand for Rs.26, 00,000/- along with interest has been made by the

concerned firm from the Department. The fact has been in your knowledge that the option of appeal in the aforesaid case has been rejected by the Govt. In such situation you had not prepared the

defence regarding validity of the agreement during framing of issues in proper manner. The case has been dismissed only on the ground of deficient Court Fees. You have deliberately

appointed Special Advocate without permission of Govt., had not paid Court Fees and had colluded with M/s Indian Cola Suppliers to cause loss of Rs.26,00,000/- to the Govt. by presenting weak case before the court in order to cause benefit to the contractor. The aforesaid Act is violation of para 9.01, 9.02 and 9.03 of financial handbook and para 3 of U.P. Govt. Servant Conduct

Rules 1956."

17

24. A bare perusal of the aforesaid charges shows that the

three charges were based on official documents/official

communications. We have earlier noticed the relentless

efforts made by the respondent to secure copies of the

documents, which was sought to be relied upon, to prove the

charges. These were denied by the department in flagrant

disregard of the mandate of Rule 7 sub rule 5. Therefore the

inquiry proceedings are clearly vitiated having been held in

breach of the mandatory sub rule (5) of Rule 7 of the 1999

Rules.

25. The first inquiry report is vitiated also on the ground

that the inquiry officers failed to fix any date for the

appearance of the respondent to answer the charges. Rule

7(x) clearly provides as under:

"(x) Where the charged Government

servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant."

26. A bare perusal of the aforesaid sub-Rule shows that

when the respondent had failed to submit the explanation to

the charge sheet it was incumbent upon the inquiry officer to 18

fix a date for his appearance in the inquiry. It is only in a

case when the Government servant despite notice of the date

fixed failed to appear that the enquiry officer can proceed

with the inquiry ex parte. Even in such circumstances it is

incumbent on the enquiry officer to record the statement of

witnesses mentioned in the charge sheet. Since the

Government servant is absent, he would clearly lose the

benefit of cross examination of the witnesses. But

nonetheless in order to establish the charges the department

is required to produce the necessary evidence before the

enquiry officer. This is so as to avoid the charge that the

enquiry officer has acted as a prosecutor as well as a judge.

Enquiry officer acting in a quasi judicial authority is in the

position of an independent adjudicator. He is not supposed

to be a representative of the department/disciplinary

authority/Government. His function is to examine the

evidence presented by the department, even in the absence

of the delinquent official to see as to whether the unrebutted

evidence is sufficient to hold that the charges are proved. In

the present case the aforesaid procedure has not been

observed. Since no oral evidence has been examined the

documents have not been proved, and could not have been 19

taken into consideration to conclude that the charges have

been proved against the respondents.

27. Apart from the above by virtue of Article 311(2) of the

Constitution of India the departmental inquiry had to be

conducted in accordance with rules of natural justice. It is a

basic requirement of rules of natural justice that an

employee be given a reasonable opportunity of being heard

in any proceeding which may culminate in a punishment

being imposed on the employee.

28. When a department enquiry is conducted against the

Government servant it cannot be treated as a casual

exercise. The enquiry proceedings also cannot be conducted

with a closed mind. The enquiry officer has to be wholly

unbiased. The rules of natural justice are required to be

observed to ensure not only that justice is done but is

manifestly seen to be done. The object of rules of natural

justice is to ensure that a government servant is treated

fairly in proceedings which may culminate in imposition of

punishment including dismissal/removal from service. In

the case of Shaughnessy v. United States, 345 US 206 (1953)

(Jackson J), a judge of the United States Supreme Court has

said "procedural fairness and regularity are of the 20

indispensable essence of liberty. Severe substantive laws

can be endured if they are fairly and impartially applied."

29. The affect of non disclosure of relevant documents has

been stated in Judicial Review of Administrative Action by De

Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:

"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."

30. In our opinion the aforesaid maxim is fully applicable

in the facts and circumstances of this case.

31. As noticed earlier in the present case not only the

respondent has been denied access to documents sought to

be relied upon against him, but he has been condemned

unheard as the enquiry officer failed to fix any date for

conduct of the enquiry. In other words, not a single witness

has been examined in support of the charges levelled against 21

the respondent. The High Court, therefore, has rightly

observed that the entire proceedings are vitiated having been

conducted in complete violation of principles natural justice

and total disregard of fair play. The respondent never had

any opportunity at any stage of the proceedings to offer an

explanation against the allegations made in the charge

sheet.

32. This Court in the case of Kashinath Dikshita vs. Union

of India, (1986) 3 SCC page 229, had clearly stated the

rationale for the rule requiring supply of copies of the

documents, sought to be relied upon by the authorities to

prove the charges levelled against a Government servant. In

that case the enquiry proceedings had been challenged on

the ground that non supply of the statements of the

witnesses and copies of the documents had resulted in the

breach of rules of natural justice. The appellant therein had

requested for supply of the copies of the documents as well

as the statements of the witnesses at a preliminary enquiry.

The request made by the appellant was in terms turned

down by the disciplinary authority. In considering the

importance of access to documents in statements of

witnesses to meet the charges in an effective manner this

Court observed as follows:

22

"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

33. On an examination of the facts in that case, the

submission on the behalf of the authority that no prejudice

had been caused to the appellant, was rejected, with the

following observations:

"Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements 23

throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross- examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

34. We are of the considered opinion that the aforesaid

observations are fully applicable in the facts and

circumstances of this case. Non-disclosure of documents

having a potential to cause prejudice to a government

servant in the enquiry proceedings would clearly be denial of

a reasonable opportunity to submit a plausible and effective

rebuttal to the charges being enquired into against the

government servant.

35. The aforesaid proposition of law has been reiterated in

the case of Trilok Nath vs. Union of India 1967 SLR 759 (SC)

wherein it was held that non-supply of the documents

amounted to denial of reasonable opportunity. It was held as

follows:

"Had he decided to do so, the document would have been useful to the appellant for cross- examining the witnesses who deposed against 24

him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."

36. The proposition of law that a government employee

facing a department enquiry is entitled to all the relevant

statement, documents and other materials to enable him to

have a reasonable opportunity to defend himself in the

department enquiry against the charges is too well

established to need any further reiteration. Nevertheless

given the facts of this case we may re-emphasise the law as

stated by this Court in the case of State of Punjab vs.

Bhagat Ram (1975) 1 SCC 155:

"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.

The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The 25

government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross-examination.

It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."

37. We may also notice here that the counsel for the

appellant sought to argue that respondent had even failed to

give reply to the show cause notice, issued under Rule 9.

The removal order, according to him, was therefore justified.

We are unable to accept the aforesaid submission. The first

enquiry report dated 3.8.2001, is clearly vitiated, for the

reasons stated earlier. The second enquiry report can not

legally be termed as an enquiry report as it is a reiteration of

the earlier, enquiry report. Asking the respondent to give

reply to the enquiry report without supply of the documents

is to add insult to injury. In our opinion the appellants have

deliberately misconstrued the directions issued by the High 26

Court in Writ Petition 937/2003. In terms of the aforesaid

order the respondents was required to submit a reply to the

charge sheet upon supply of the necessary document by the

appellant. It is for this reason that the High Court

subsequently while passing an interim order on 7.6.2004 in

Writ Petition No. 793/2004 directed the appellant to ensure

compliance of the order passed by the Division Bench on

23.7.2003. In our opinion the actions of the enquiry officers

in preparing the reports ex-parte without supplying the

relevant documents has resulted in miscarriage of justice to

the respondent. The conclusion is irresistible that the

respondent has been denied a reasonable opportunity to

defend himself in the enquiry proceedings.

38. In our opinion, the appellants have miserably failed to

give any reasonable explanation as to why the documents

have not been supplied to the respondent. The Division

Bench of the High Court, therefore, very appropriately set

aside the order of removal.

39. Taking into consideration the facts and circumstances

of this case we have no hesitation in coming to the

conclusion that the respondent had been denied a

reasonable opportunity to defend himself the inquiry. We, 27

therefore, have no reason to interfere with the judgment of

the High Court.

40. Appeal is dismissed.

........................................J (V.S. SIRPURKAR)

.........................................J (SURINDER SINGH NIJJAR)

NEW DELHI,

FEBRUARY 02, 2010.