T. Meena Kumari, J. (for A. Gopal Reddy, J., R. Subhash Reddy, J. and herself)
1. A Division Bench of this Court presided by the then Chief Justice Hon'ble Sri Devinder Gupta by its order dated 15-12-2004 felt proviso (b) to Rule 45(1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "the 1991 Rules") appears to have not been taken note of by the Full Bench in V. Venkata Bharani v. High Court of A.P. 2001 (6) ALT 225 which in its turn had approved the ratio laid down by the Division Bench of this Court in V. Rajamallaiah v. High Court of A.P. and thus referred the matter to the Full Bench to consider the question as to the legality and validity of disciplinary proceedings continued against the petitioner under A.P. Civil Services (Classification, Control & Appeal) Rules, 1963 (for short "the 1963 Rules") after 1991 Rules were adopted by the High Court. On placing the matter before the Full Bench, it held that the departmental enquiry held against the petitioner and the order of punishment of compulsory retirement imposed on her were under 1963 Rules; and the entire disciplinary action initiated against the petitioner would, therefore, be ultra vires to 1991 Rules. The Full Bench while expressing their inability to agree with the judgment of the Full Bench in V. Venkata Bharani 2001 (6) ALT 225that the prejudice doctrine cannot be extended to cases where the entire set of applicable rules have been ignored and its being a co-ordinate Bench referred the matter to a Larger Bench to decide the question as to whether the prejudice doctrine can be extended to disciplinary proceedings where applicable rules, in its entirety, have been ignored.
2. The facts that necessitated filing the writ petition, in brief, are as follows:
The petitioner was appointed as a Judicial First Class Magistrate in the year 1985 and was promoted as a Subordinate Judge from 13-11-1999. Based on a petition, sent by one Sri V.V. Audinarayana, Amin and ten others, alleging that the petitioner had ill-treated them and had not sent the pay bill relating to the process establishment for the month of September, 1997, and on information that the petitioner had pronounced judgment in S.C. No. 136 of 1996 on 24-10-1997 even though the judgment was not typed, a report was called for from the District Judge, Srikakulam. The learned District Judge, in his report dated 4-11-1997, stated that the petitioner had pronounced the judgment without completing it which was highly irregular and that she had been harassing staff members for reasons best known to her. On the basis of the above said report the High Court of Andhra Pradesh, vide proceedings dated 19-11-1997, while placing the petitioner under suspension, ordered departmental enquiry against her and appointed Sri P. Lakshmana Reddy, the then District Judge, Visakhapatnam as the Enquiry Officer. The Enquiry Officer vide proceedings dated 6-1-1998, was directed to frame additional charge based on the complaint dated 6-1-1998 and the additional report of the District Judge dated 2-12-1997.
3. The enquiry officer framed charges against the petitioner on 30-4-1998, to which the petitioner submitted her explanation in May, 1998 denying the allegations. The petitioner did not choose to adduce oral evidence but marked four documents and also filed an additional written statement. The Enquiry Officer, in his report dated 23-9-1998, held all the charges, except charge No. 5 as having been proved. The High Court, on considering the enquiry report, furnished a copy thereof and called for the petitioner's explanation thereto. The petitioner submitted her explanation on 18-11-1998. The High Court considered it expedient to impose the punishment of compulsory retirement on the petitioner and requested the Government to issue necessary orders in this regard. Consequent thereto, the 1st respondent, vide G.O.Ms.No. 87 dated 28-5-1999, imposed the punishment of compulsory retirement on the petitioner.
4. The Full Bench in its order referred to above, has observed the decision rendered by a Division Bench of this Court in V. Rajamallaiah (2 supra), wherein on taking note that under the 1963 Rules, it observed that the disciplinary authority could appoint an enquiry officer to conduct a departmental enquiry and authorize him to frame charges, whereas, under the 1991 Rules the disciplinary authority himself was required to frame the charges, and held that this departure in the procedure in no way affected the delinquent employee and whether the charges are framed by the disciplinary authority himself or are framed by the Enquiry Officer appointed by him would not make any difference as regards fairness in terms of procedure, and would not vitiate either the enquiry conducted by the Enquiry Officer or the findings recorded by him. The Division Bench also held that in the absence of a plea of prejudice caused on account of the departure in procedure, the action taken against the delinquent employee could not be set at naught merely on this technical ground.
5. The said decision in V. Rajamallaiah ( supra) was brought to the notice of another Division Bench consisting of BN J & EDR J. But the said Division Bench while holding that when an enquiry was conducted under the non-existent and repealed 1963 Rules, the punishment given on the basis of such an enquiry would be without jurisdiction, prejudice or no prejudice was irrelevant, and the punishment could not be sustained and referred the matter to a Full Bench. Earlier Full Bench of this Court in V. Venkata Bharani ( supra) case considering the question as to how far and to what extent the Doctrine of Procedural Ultra Vires shall be applicable, and following the judgment of the Supreme Court in State Bank of Patiala v. S.K. Sharma held that the procedural doctrine of estoppel arises where an order passed is wholly without jurisdiction, but the same may not be held to be applicable to a case where the procedural infirmity may not lead to a substantial change in the result.
6. It has been contended by Sri D. Prakash Reddy, learned Senior Counsel for the petitioner that in view of the fact that though the CCA Rules of 1963 have been amended in 1991 by the Government of Andhra Pradesh and the same were adopted by the High Court in the year 1997 through its circular in ROC No. 2053/SO/92 dated 5-12-1997, yet the disciplinary authority has not followed the entire set of 1991 Rules in conducting the enquiry, the petitioner is put to great prejudice.
7. It is further contended that as per Sub-rule (4) of Rule 20 of 1991 Rules, the disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviours and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
8. Relying on the above rule, the Senior Counsel vehemently contended that as no such procedure has been followed in this case, it amounts to violation of principles of natural justice and hence the petitioner is prejudiced and the doctrine of prejudice would clearly apply to this particular case and that the law laid down by the earlier Full Bench in Venkata Bharani (1 supra) is to be held as bad in law.
9. Regarding Sub-clause (a) of Rule 45 of 1991 Rules, which envisages that such repeal shall not affect the previous operation of the said rules or any notification or order made, or anything done, or any action taken, there under; the learned Senior Counsel for the petitioner would contend that as no proceedings were pending when the circular has been issued by the High Court initiating enquiry against the petitioner, the repealing clause cannot be made applicable to the instant case and as held by the Full Bench the disciplinary action has to be held to be proceeded with under 1991 Rules. He further vehemently argued that as the said rules, in its entirety, have not been followed, the prejudice doctrine has to be extended to the instant case.
10. On the other hand, Sri C. V. Nagarjuna Reddy, the learned Standing Counsel for the High Court of A.P., argued that since 1991 Rules have been adopted by the High Court through its circular dated 5-12-1997 and made applicable in respect of proceedings of departmental enquiries that would be initiated on or after 1-1-1998, and that in view of repeal and saving clause under Rule 45 of the 1991 Rules, the action against the petitioner has already been initiated under 1963 Rules based on the report of the District Judge, Srikakulam dated 4-11-1997 and the proceedings of the High Court ordering enquiry was dated 19-11-1997, which is much prior to 1-1-1998, application of 1963 Rules cannot be held to be ultra vires 1991 Rules. Further, it cannot be said that the proceedings have not been pending at that time and the action taken in pursuance of the old rules also would not get affect.
11. However, learned Standing Counsel had further made a submission before us that in view of the findings of the Full Bench in this case that the action initiated under disciplinary proceedings against the petitioner herein and the punishment of compulsory retirement imposed under 1963 Rules, would ultra vires 1991 Rules, the point that whether the action as contemplated under 1963 Rules or 1991 Rules is not the subject matter before the larger bench and the only point that is to be decided is regarding the applicability of prejudice doctrine. However, while advancing his arguments with regard to the reference made by the Full Bench, learned Standing Counsel had submitted that it is for the petitioner to show that she is prejudiced by not following the 1991 Rules. The learned Standing Counsel for the High Court also submitted alternatively that even assuming that 1991 Rules would be applicable to the petitioner, it is for the petitioner to show that she is prejudicially affected for not following the procedure as contemplated under 1991 Rules. He also contended that in the absence of any material before this Court to show that the procedure as contemplated under 1991 Rules has been violated, there cannot be a ground for invoking the doctrine of prejudice.
12. Learned Standing Counsel further contended that even under 1991 Rules the procedure as contemplated under Rule 20(4) has been followed by the disciplinary authority which is evident from the record and that the matter has to be heard on merits to arrive at a conclusion whether the rules are violated and any prejudice has been caused to the petitioner or not. It is further contended that the Full Bench has come to the conclusion that the disciplinary action initiated under 1963 Rules is ultra vires 1991 Rules and hence referred the matter to the larger bench only with regard to doctrine of prejudice.
13. On the basis of the above arguments, the point that arises for consideration is whether the doctrine of prejudice can be extended to the cases where the disciplinary proceedings were conducted not in accordance with the applicable rules.
14. It is well settled law that the party, who alleges prejudice, must show that real prejudice has been caused to him/her and that should be pleaded and demonstrated.
15. It is a fact that the High Court of Andhra Pradesh had adopted the 1991 Rules through its circular dated 5-12-1997 regarding the matters on disciplinary enquiries. However, the material filed along with the writ petition goes to show that the action has already been initiated on 19-11-1997 based on the report of the District Judge submitted on 4-11-1997 and the High Court issued proceedings ordering departmental enquiry against the delinquent. It is not permissible for this Court to decide the question as to which rules would be applicable to the present case since the said question has already been decided by the Full Bench and is not the subject matter before us.
16. The argument advanced before us is that as per Sub-rule (4) of Rule 20 of 1991 Rules, the petitioner was not asked to state whether she is desirous to be heard in person while submitting her written statement in reply to the show cause notice. At this stage, learned counsel appearing on behalf of the Registrar, High Court of A.P., has stated that the record shows that the delinquent has submitted that she would not choose to be heard in person and hence the question of not following the rules does not arise.
17. The sub rule (4) of Rule 20 of 1991 rules reads as follows:
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
18. In V. Venkata Bharani (2 supra) the Full Bench of this Court on a perusal of 1963 Rules and 1991 Rules noticed one major difference in procedure for imposing penalties. In terms of 1963 Rules, the Enquiry Officer could frame charges, whereas in terms of the 1991 Rules, the disciplinary authority itself is required to do the same.
19. Rule 20(3) of the 1991 Rules makes it clear that the disciplinary authority or the cadre controlling authority who is not designated as disciplinary authority and who is subordinate to the appointing authority shall draw up the charge-sheet and the said charge-sheet will have to be delivered to the Government servant along with a copy of the articles of charge, statement of imputation of his conduct or misbehaviour and a list of documents and witnesses by which each charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. After the explanation is submitted by the delinquent, the disciplinary authority will consider the explanation to submit and if it is found that an enquiry is needed, will appoint an enquiry officer for the enquiry into the charges. The formulation of rules of procedure for taking disciplinary action, such as the 1991 Rules, has served to provide a code of procedure, founded on the principles of natural justice, and approximated to them as far as possible, instead of leaving to the enquiry officer in each case, to devise his own procedure, in accordance with what he conceives to be reasonable or just. It seems reasonable to construe Sub-rules (2) to (5) of Rule 20 of the 1991 Rules, as implying that it is the same disciplinary authority that can initiate and pursue the steps enjoined by it. Under it, the written statement of defence by the Civil servant, in answer to the charges against him which have been communicated to him, has to be put in before the disciplinary authority, which may then order an enquiry by itself or appointing an enquiry officer.
20. This court in State of Andhra Pradesh v. Kameswara Rao 1957 (1) An.W.R. 370 : AIR 1957 A.P. 794 after considering Rule 15(b)(i) of Madras Civil Services (Classification, Control and Appeal) Rules, which is in pari materia with Rule 20 of the 1991 Rules, explained one of the objects intended to be served by the provision, is to enable the authority to exonerate the civil servant, even at the preliminary stage, if on a perusal of his statement of defence the authority feels that there is no case for an enquiry, or to limit the scope of the enquiry, if any, to be held. Entire Rules complained of by the petitioner particularly Rule 20 consisted in the committal of the enquiry, and in the appointment of Sri P. Lakshmana Reddy, the then District Judge as enquiry officer to hold the enquiry, before complying with the formalities and the procedure prescribed by Sub-rule (4) of Rule 20. On the true construction of the above provision, it has to be held that there was a violation of it in the manner complained of.
21. It was contended by the learned Senior Counsel for the petitioner that by committing the enquiry in the above manner High Court virtually delegated their duty to frame charges against the petitioner to the enquiry officer which could not be done under law, thus the prejudice doctrine as enunciated in S.K. Sharma (3 supra) cannot be extended to the cases where the entire set of rules have been totally ignored. It may be that this court would interfere under Article 226, when a plain violation or breach of a statutory rule is brought to its notice at a very preliminary stage, when the irregularity can be set right by timely interference. But the question which arises in the present case is whether breach of rules irrespective of any prejudice resulting from it is per se a legal and a justifiable ground for setting aside an order of punishment of compulsory retirement of the petitioner:
22. The Kerala High Court in Gopinathan Nair v. State held that non-compliance with the Rule 17(2) of Kerala Civil Service (Classification, Control and Appeal) Rules, 1957 (which is identical to Rule 20) by the disciplinary authority, by its omission to frame the charge, and by leaving it to the enquiring officer to do so, is no ground to invalidate the final order "so long as there has been a fair enquiry as envisaged by Article 311.
23. Learned Senior Counsel for the petitioner was not prepared to put his case on any prejudice having resulted to the petitioner from a violation of the provision in question, but he contended for the broad proposition, that in law a violation of the rules by itself amounts to a denial of "reasonable opportunity" guaranteed by Article 311(2) reserving the right of petitioner to substantiate before the appropriate Bench on reference being answered...
24. In Pradyat Kumar Bose v. Chief Justice of Calcutta High Court where a delegation by the Chief Justice of Calcutta High Court to one of the puisne judges to hold an enquiry against the Registrar of the High Court was held by Supreme Court to be valid. After referring to Barnard v. National Dock Labour Board (1953) 1 All E.R.1113) the Supreme Court observed:
It is well-recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, That is the ordinary mode of exercise of any administrative power, What cannot be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power" and relying on Board of Education v. Rice (1911 AC 179) remarked that "a functionary who has to decide an administrative matter, of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient....
25. In Dr. G. V. Pantulu v. Govt. of Andhra 1957 ALT 788 : AIR 1958 A.P. 240.where the Tribunal for disciplinary proceedings framed charges on the directions issued by the Government and submitted its report after conducting enquiry and delinquent officer was dismissed from service who was unsuccessful in departmental appeal challenged the dismissal on various grounds, Chief Justice K. Subba Rao (as he then was) speaking for the Bench, quoted with the approval of the ratio laid down in (1) Joga Rao v. State of Madras 1956 ALT 979 : 1956 An.W.R. 978 : AIR 1957 A.P. 197 and (2) unreported judgment in W.P.No. 15 of 1954, respectively:
It is true some cases have held that even if the rules have been violated, the civil servant has no right to question the order dismissing him unless by the violation of such rules, no reasonable opportunity is given to him within the meaning of Article 311 of the Constitution of India. The Madras Civil Services (Disciplinary Proceedings Tribunal) Rules and the Madras Civil Services (Classification, Control and Appeal) Rules are statutory rules and they are as much binding upon the Government as upon the citizen....It can be reasonably agreed that if the Government make an inquiry ignoring the said rules, the High Court can, under Article 226 of the Constitution direct them to make an enquiry according to the rules, though in cases where the High Court is satisfied that no prejudice is caused to the Civil Servant, it may in exercise of its discretion refuse to issue any direction. (para 12)
The rules being statutory rules are as much binding upon the Government as on Government servants. The rules cannot, therefore, be ignored. At the same time every breach of the rule will not entail the quashing of the Government's order, if the Court is satisfied that the said breach has not caused any prejudice to the Government servant concerned....This Court, therefore, will not in the exercise of discretion quash the order of the Government on the basis of a mere infringement of the rule if a reasonable opportunity was given to the Government servant to defend himself and he is not otherwise prejudiced:" (para 13)
held that the Tribunal should have recorded reasons for not summoning Dr. Lakshminarayana, the infringement of that rule, in the circumstances of the case, had not prejudiced the petitioner, and therefore that in itself is not a ground for quashing the order of the Government dismissing the petitioner from service.
26. The Supreme Court in S.K. Sharma (3 supra) summarized the principles with regard to the power of the High Court over the disciplinary proceedings as under:
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedure in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in Managing Director, ECIL v. B. Karunakar . The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) to (7) XXX.
27. In Venkata Bharani (1 supra) the Full of this Court after following the cardinal principles summarized in S.K. Sharma (3 supra), extracted as above, and after considering the doctrine of procedural ultra vires held as under:
Rule 45 of the 1991 Rules repealed the 1963 Rules, which include the A.P. State Higher Judicial Service Rules, but the same would not ipso facto mean that the 1991 Rules would become applicable to the ministerial officers of the subordinate judicial service. For applicability of such Rules, the consultation of the High Court laws necessary. In the aforementioned situation, even non-existence of the 1991 Rules to take disciplinary proceedings would not mean that an employee guilty of misconduct cannot be proceeded against and punished. The same can be done by following the principles of natural justice. If the 1963 Rules and the departmental circulars issued by the High Court had been followed, which are not said to be contrary or inconsistent with the general principles of natural justice, in our considered opinion, the disciplinary proceedings would not be vitiated in law.
It was further held that the prejudice doctrine has to be applied where disciplinary proceedings are held in violation of the 1991 Rules.
28. At this stage, in view of the submission made by the learned Standing Counsel for the High Court and in view of the fact that the record goes to show that the petitioner herself did not choose to be desirous to be heard and requested to treat her written statement as written arguments on her behalf, we are of the considered opinion that even as per new rules there is no departure in procedure as per Sub-rule (4) of Rule 20, operated against the petitioner to contend that any prejudice is caused to her.
29. It has to be further observed that the petitioner must satisfy the prejudice that caused to her i.e., procedural departure, which caused detriment to her legal claims or rights. It is to be observed that it is for the delinquent to demonstrate the prejudice and the same has to be considered on its own merits. The earlier Full Bench in Venkata Bharani ( supra) case observed that natural justice cannot be applied in its rigid form and it is flexible in its application and that the applicability of the principles of natural justice has undergone a sea-change, and a slight infraction of procedural safeguard cannot vitiate the disciplinary proceedings unless it is held that thereby the delinquent employee was seriously prejudiced. In view of the submission made by the learned Standing Counsel appearing on behalf of the High Court that petitioner herself has chosen that she is not desirous to be heard in person basing on the record, we are of the opinion that such action on the part of the petitioner would not have caused a prejudice to her to invoke the doctrine of prejudice and also to contend that the principles of natural justice has been violated. Further, straightjacket formula cannot be made applicable but compliance of the doctrine is solely dependent upon the facts and circumstances of each case.
30. It has to be further observed that unless it is clearly established that the procedure followed in 1963 Rules has caused serious prejudice to the petitioner, it cannot be deemed to be a ground of prejudice only on the assumption that Sub-clause (4) of Rule 20 of 1991 Rules has not been followed. However, in view of the law laid down by the earlier Full Bench that unless the employee is seriously prejudiced by infraction of procedural safeguard, the disciplinary proceedings are not invalid and that the doctrine of prejudice may arise only on demonstration since no material is placed before this Court that procedure contemplated of the entire set of rules has been ignored and any prejudice is caused to the petitioner.
31. Therefore, we are of the opinion that though the 1991 Rules for disciplinary action are meant to be observed and not to be ignored, and the complaint of the petitioner against her punishment has also to be tested in the context of relevant rules, it is not that every breach of the rule, would perse a legal and justifiable ground for setting aside the order of compulsory retirement from service.
32. Accordingly, we hold that the view expressed by this court in Venkata Bharani (1 supra) is in conformity with the consistent view taken by this Court as well as the Apex Court in the matter of disciplinary proceedings and further hold that the prejudice doctrine can be extended to the disciplinary proceedings even where the applicable rules, in its entirety, has been ignored.
33. The reference is answered accordingly.
Goda Raghuram, J.
1. I have perused the judgment prepared by the Hon'ble Smt. Justice Meena Kumari. Having regard to the importance of the issue involved I record my distinct judgment on the order of reference, while wholly concurring with Justice Meena Kumari's conclusion that the doctrine of prejudice is applicable even where the applicable rules were not followed in the conduct of disciplinary proceedings. As the reference is on a point of principle the question whether in applying the doctrine of prejudice, the petitioner has suffered real or substantial prejudice is an aspect that ought to be relegated to the appropriate bench of this court for consideration and need not be determined by this bench. Analysis of the facts of the case in the context of the applicability of the prejudice doctrine and recording of findings thereon, is not the province of this fuller bench.
2. This Fuller Bench was constituted and requisitioned to answer the reference, dated 8-11-2005 by a Full Bench of this court. The question submitted to this Fuller Bench for resolution:
Whether Prejudice Doctrine can be extended to disciplinary proceedings where the applicable rules, in its entirety, has been ignored?
3. We have heard Shri D. Prakash Reddy, Learned Senior Counsel for the petitioner and Shri C.V. Nagarjuna Reddy, Learned Counsel for the High Court, for the respondent. We have been ably assisted and we record our appreciation for the valuable assistance.
4. The relevant factual scenario has been recorded succinctly and with painstaking care in the order of reference and hence it is not necessary to record the facts yet again and in detail. The learned Full Bench has also recorded its conclusions on some issues. The reference to this Bench is limited to the aspect adverted to above.
5. For the purpose of answering the reference it is enough to record the jurisdictional facts and certain conclusions arrived at by the Full Bench.
(A) The petitioner was a Subordinate Judge, at the relevant time.
(B) The Administrative Committee of the High Court at a meeting held on 10-11-1997 appointed the then District Judge, Visakhapatnam as the Inquiry Officer to inquire into the allegations against the petitioner; submit a report to the court and also resolved to place the petitioner under suspension pending inquiry.
(C) By proceedings dated 19-11-1997, the inquiry officer was directed also to frame charges against the petitioner.
(D) By the proceedings dated 6-1-1998 the enquiry officer was directed to frame additional charges.
(E) On 30-4-1998 the inquiry officer framed charges.
(F) In May 1998 the petitioner submitted an explanation denying the allegations.
(G) After a process of departmental inquiry, the enquiry officer submitted a report dated 23-9-1998 concluding that all charges except charge No. 5 were proved.
(H) The petitioner's explanation was called for by the High Court and the petitioner submitted her explanation on 18-11-1998.
(I) Considering the record of the inquiry the High Court proposed the punishment of compulsory retirement and requested the Government to take appropriate action on the proposal.
(J) By G.O.Ms.No. 87, Law (LA & J, Courts. C) Department, dt.28-5-1999 (impugned in the writ petition) the State Government ordered that the petitioner be compulsorily retired from service.
(A) On 30-1-1994 the A.P. Civil Services (Classification, Control and Appeal) Rules 1963 [the 1963 Rules] were published. Rule-5 sets out the classification of the civil services of the State into (a) the State Services and (b) the Subordinate Services. Rule-6 specifies that the State Services are those included in Schedule-I. Items 31 and 32 of Schedule-I enumerate the Andhra Pradesh State Higher Judicial Service and the Andhra Pradesh State Judicial Service as State services within the ambit of the 1963 Rules.
(B) The 1963 Rules were repealed by the A.P. Civil Services (Classification, Control and Appeal)
Rules 1991 [the 1991 Rules]. The 1991 Rules came into force w.e.f. 1-12-1992.
(C) In the 1991 Rules the State services and Subordinate services (as set out in Schedules I & II) are specified. The Andhra Pradesh Higher Judicial Service and Andhra Pradesh State Judicial Service are enumerated as items 43 and 44 in Schedule-I, while the Andhra Pradesh Judicial Ministerial Service is enumerated as item 22 in Schedule-ii of the 1991 Rules.
(D) By a circular dt. 15-2-1993 the High Court issued instructions directing all enquiry officers to conduct enquiries in accordance with the provisions of the 1963 Rules instead of the 1991 Rules, until further directions.
(E) By another circular dt. 5-12-1997 the High Court - (a) extended the application of the 1991 Rules to departmental inquiries initiated on or after 1-1-1998 and (b) all District and Sessions Judges and Presiding Officers in the State were directed to conduct regular departmental inquiries against the Judicial Officers and employees in accordance with the provisions of the 1991 Rules.
Conclusions of the Full Bench (in this writ petition, in the order of reference):
(i) Disciplinary proceedings must be considered as having been initiated only on the date the charge sheet was prepared and signed by the competent authority (i.e., 30-4-1998).
(ii) In view of (i) above, the disciplinary proceedings against the petitioner are deemed to have been initiated on 30-4-1998, subsequent to 1-1-1998 [the date w.e.f. which the 1991 Rules became applicable to the conduct of inquiry against the petitioner].
The perceived conflict of Precedential Authority leading to the order of Reference
Division Bench of this court held that in the absence of a plea of prejudice caused on account of a departure in the procedure to be followed in conducting disciplinary inquiry, the action taken against a delinquent employee could not be invalidated, merely on the ground that the 1963 Rules were followed and not the applicable 1991 Rules.
(b) Another Division Bench of this court in W.P.No. 17642/99 was confronted with an identical fact situation. A ministerial employee of the Court of the Metropolitan Sessions Judge, Hyderabad, was removed from service pursuant to a disciplinary enquiry initiated against her under the 1963 Rules subsequent to the repeal and substitution of those Rules by the 1991 Rules. She challenged the punishment. A Division Bench (Bilal Nazki and E. Dharma Rao, JJ) initially heard the writ petition. The judgment of another Division Bench (S. R. Nayak and S. Ananda Reddy, JJ) dated 12-4-2001 (where the Division Bench had up-held the disciplinary action on the ground that though the repealed Rules were followed no complaint of prejudice was made or established) was brought to the notice of the Division Bench in W.P. No. 17642/99. The Division Bench expressing the opinion that when an enquiry was conducted under nonexistent and repealed Rules, the punishment thereby imposed would be one without jurisdiction, irrespective of prejudice, differed with the view expressed by the earlier Division Bench in Writ Petition No. 4931/98 () and referred the matter for
consideration of a Full Bench. A Full Bench of this court (Chief Justice S.B. Sinha, Motilal B Naik and V.V.S. Rao, JJ) in V. Venkata Bharani v. State of Andhra Pradesh answered the
reference. Following the judgment of the Supreme Court in State Bank of Patiala v. S.K. Sharma . the Full Bench in
Venkata Bharani concluded that even in a case where the repealed 1963 Rules were followed the doctrine of prejudice would apply and on merits declined to interfere with the punishment.
(c) While referring the matter for consideration by a Larger Bench, the learned Full Bench entertained a doubt whether the decision of the Supreme Court in S.K. Sharma provides comprehensive guidance for resolution of a fact situation where the disciplinary enquiry was initiated and conducted wholly under the repealed Rules and current and operative statutory rules in their entirety are ignored. The learned counsel for the petitioner had argued (before the Full Bench) that the question regarding the application of the prejudice doctrine to cases where the rules in their entirety have been violated, was not decided by the Full Bench of this court in Venkata Bharani and therefore that question must be considered. It is in the context of such a contention that the Full Bench made the present order of reference.
The Jurisprudence of the Prejudice Doctrine:
6. Flawed State actions/decisions (legislative or executive) and how to deal with them is an issue that has ever troubled public law. An administrative decision, statutory or otherwise could be flawed for a variety of reasons and on account of categories of errors. The flaw in the decision could be the product of a jurisdictional or a non-jurisdictional error; violation of substantive or procedural statutory prescriptions; violation of one or more principles of natural justice; or for eschewing relevant considerations or reckoning irrelevant considerations. There may be a variety of other reasons for the flaw as well.
7. In the case of ultra-vires and in the case of certain principles of natural justice initially, in the evolutionary process of administrative law principles in this area, it was considered that a flawed administrative decision is a nullity, wholly without vitality or effect in law. This theme finds expression in several decisions of the House of Lords. Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 had stated there are no degrees of nullity. This was considered a fundamental rule and in Hoffmann La Roche & Co., v. Secretary of State for Trade and Industry (1975) AC 295 Lord Diplock clarified that void is the correct term to be employed in any such context and added; it would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by an executive arm of government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any less consequence in law than to render the instrument incapable of ever having had any legal effect.... Again in Boddington v. British Transport Police(1999) 2 AC 143 Lord Chancellor Irvine reiterated this principle by stating that when an Act or regulation has been pronounced by the Court to be unlawful, it is then recognized as having no legal effect at all.
8. Such characterization of a flawed State action in absolute terms is not necessarily determinative of the result nor does it perhaps condition the consequence in every case. There is also the willingness of the Court to grant the necessary relief that must be considered.
9. A Court may hold that the Act or the order is invalid but may refuse relief to the applicant for a variety of reasons such as locus standi, limitation, delay and laches, waiver of the right or even overbearing public injury considerations or grave administrative inconvenience.
10. In reality and in practice, a Court would invalidate an order only if the appropriate remedy is sought, by a right person having the standing to sue, in appropriate proceedings and under appropriate circumstances. Therefore a decision may be said to be a nullity or void but the meaning of such characterization is relative depending upon the Court's willingness to grant relief in a particular situation. Forsyth & Taggart Judicial Review of Administrative Action in the 1980's - M. Taggart; The Golden Metwand - Forsyth and Hare have considered and analyzed the evolution in administrative law principles in this area.
11. In Wang v. The Commissioner of Inland Revenue (1994) 1 W.LR. 1286 (PC). the Privy Council held that the breach of a time provision by the Hong Kong's Inland Revenue would not deprive the decision maker of jurisdiction and render any decision which he purported to make null and void. The Privy Council did not rest the decision on the mandatory or directory nature of the provision; instead it held that the decision of the Inland Revenue resulted in no real prejudice to the taxpayer in question by reason of the delay and that invalidation of the decision would not only deprive the Government of revenue but would also be unfair to other taxpayers who need to shoulder the burden of Government expenditure.
12. Though not normally a criterion for refusal of relief, administrative inconvenience is very rarely but nevertheless a ground for courts refusing relief. In Simpson v. Att. Gen (1955) NZLR 271 the challenge to an election was rejected and the warrant issued by the Governor General for holding the general election beyond the date specified by the Statute was upheld. The court held that a contrary decision would have the catastrophic effect of nullifying a number of Acts of Parliament, together with all actions taken under them.
13. Similarly where the breach of a principle of Natural Justice has made no difference to the result, where to insist on natural justice or fairness would be pointless, futile or where no prejudice has been caused to the applicant for judicial review, relief is denied R. v. Law Society of Alberta, ex p. Demco (1967) 64 D.L.R. (2d) 140; R v. Monopolies and Mergers Commission, ex p. Argyll (1985) 1. W.LR. 763.
14. Even in the realm of judicial review of legislative action, the grant of relief by the Court on a finding of unconstitutionally of a Statute, ranges from denial of relief to prospective overruling of the Statute in question. In the fundamental case of Great Northern Railway v. Sunburst Oil and Refining Company 287 US 358 (1932) Cardozo, J identified and applied the doctrine of prospective overruling to minimize the chaotic effects of invalidation of a legislative instrument. This principle of prospective overruling has been adopted and applied in India for the first time by the majority in Golak Nath I.C. v. State of Punjab. . This principle was
subsequently followed and applied in several cases by the Supreme Court both in the constitutional and statutory context Indira Sawhney II v. Union of India ; Gangaram Moolchandani v. State of Rajasthan ; Managing Director, ECIL, Hyderabad v. B. Karunakar .
15. The construct of judicial review of legislative action evolved by Chief Justice Marshall in Marbury v. Madison was a complex one. The concept postulated that not only was the Constitution a statement of an ideal political structure to which the Government must aspire or a charter for the distribution of rights and responsibilities among various levels of Government but also the fundamental and paramount law of the Nation. On this premise of the character of a Constitution, Marshall propounded the theory of judicial review and that an Act of Legislature repugnant to the Constitution is void.
16. The initial approach of the Courts to the question of unconstitutional Statutes was best expressed in the words of Thomas Cooley Thomas Cooley - Constitutional Limitations.: the term unconstitutional law, as employed in American jurisprudence, is a misnomer and implies a contradiction; that the enactment which is opposed to the constitution being in effect no law at all. In Norton v. Shelby County 118 US 425 . Field, J declared: an unconstitutional Act is not a law; it confers no rights, it imposes no duty, it affords no protection; it creates no office; it is, in legal contemplation as inoperative as though it had never been passed. Since Justice Cardozo's opinion in Great Northern Railway (11th supra) the American approach to the normatively retrospective effect of judicial decisions has evolved and vigorously. The application or otherwise (of the retroactive principle governing judicial pronouncements) on the meaning of constitutional provisions or Statutes has been differently applied to Civil and Criminal judicial proceedings - See Linkletter v. Walker. 381 US 618. Refined guidelines for application of the doctrine (of prospective overruling) have been set out in Stovall v. Denno 388 US
293.; Chevron Oil Co. v. Huson 404 US 97, Griffith v. Kentucky 479 US
314.; American Trucking Associations, Inc v. Smith 496 US 167; James B. Beam Distilling Co. v. Georgia 501 US 529; and in Harper v. Virginia Department of Taxation 509 US 86. The principles in this area are still evolving in American Jurisprudence.
17. The point that is relevant to our situation is that the courts evolve principles to meet emerging and dynamic conflicts; to achieve balancing and equilibrium even in justice administration. The tumultuous or chaotic effects of overruling an existing precedent or laying down a new rule might on occasion cause severe hardship and inconvenience to individuals and/or result in large-scale dislocation of arrangement made on the basis of the overruled principle. All these are relevant factors that enter the judicial calculus while determining whether to apply the new principle retroactively. If on an appropriate balancing of the competing considerations, the merits and demerits of each course of action, the court is satisfied that retrospective application of the new principle would result in a degree of inequity that outweighs the justification for retroactive application, the court would deny relief to the applicant while laying down the new rule for prospective application.
18. The doctrine of unjust enrichment is another concept that is judicially evolved to prevent unmerited benefit to an applicant who has paid a tax on the basis of an ultra vires instrument or an unconstitutional law. Relief is also denied where to do so would cause overbearing economic distress to the State. In Mafatlal Industries v. Union of India the Supreme Court majority held that in all events the restitutionary relief of refund could be denied when to do so would result in the unjust enrichment of the applicant or the refundee.
19. It is on authority that the grant of refund is not an automatic consequence of the declaration of illegality of the Act under which the tax was collected and that the Court has the discretion to suitably mould and restrict the relief and deny refund, in the interests of justice. In Orissa Cements Ltd. v. State of Orissa (1991) Supp. 1 SCC 430, the Court held that there is a discretion to grant or decline refund - the discretion to be exercised having regard to all the circumstances of the case. A refund of the illegal tax collected may be refused, held the Court, on grounds other than laches or limitation. Refund may be refused on ground of intervention of third party rights, unjust enrichment of the refundee or even that vital interests of the State would be affected if a refund were ordered.
20. In denying the discretionary relief of Mandamus, courts have identified circumstances in which relief ought to be denied notwithstanding the illegality of the impugned State action. Relief has thus been denied on the ground of delay and laches - Rabindranath Bose v. Union of India .; Star Wire (India) Ltd. v. State of Haryana. . Mandamus is also refused where to grant relief could result in injustice in a broad sense - Gopal Prasad v. Registrar, M.P. High Court . would place an
intolerable burden of inconvenience on numerous citizens of India and an adjoining territory and set at naught the usage of more than a century and a quarter - B. Radha Krishna v. Madras . Applying the same principle Certiorari was refused where to grant the relief would have permitted the technicality of law to cause unjust enrichment of the Municipal Committee which it was the policy of the law to avoid -- Sagar Municipality v. Board of Revenue
21. In G. Venkataswara Rao v. Govt of Andhra Pradesh AIR 1966 A.P. 828, the Supreme Court upheld the order of the High Court declining relief where the quashing of the impugned Government Order would have resulted in restoring an earlier Government Order, which was also illegal for failing to issue notice to the Panchayat Samithi.
22. As a general rule a court will not intervene in favour of a litigant who has allowed a court or authority to proceed to a decision without setting up an objection of which he was aware at the time; such as that a Tribunal was improperly constituted since one of the members has an interest in the case before it - R v. Williams Ex p. Phillips (1914) 1 KB 608.. Even a challenge on the ground of bias may be defeated if the conduct of the complainant discloses that he has waived his right to object on this ground - State of Bihar v. P.P. Sharma (1992) Suppl(1) SCC 222..
23. When it comes to principles of natural justice, as these are not embodied rules a pragmatic approach to their regulation and application is advocated. Cannot be imprisoned within the straitjacket of a rigid formula Union of India v. P.K. Roy. , the principles undergo situational modifications; Maneka Gandhi v. Union of India: . in a given case the requirements might have to be tailored to safeguard public interest e.g. disclosure of sensitive information need not be made, Jammat-e-Islami Hindi v. Union of India: oral hearing is not always a necessary concomitant of the principles Union of India v. Jesus Sales Corporation . post-decisional opportunity adequately recompenses the failure to afford a pre-decisional opportunity Maneka Gandhi (34 supra); Canara Bank v. V.K. Awasthy. . are some of the nuances evolved to reign in the unruly horse of natural justice and operationalise these principles with due regard to the need for balancing individual rights of liberty and due process with the paramount need to maintain pubic interest.
24. In the evolution of the principles of administrative and public law in this area, the concept that apart from transgression of legal principles even statutory, an applicant must show clear prejudice, has been a discernible and governing facet of the evolutionary paradigm. In M.C. Mehta v. Union of India , it was pointed out that there could be certain circumstances in which an order passed in violation of natural justice need not be set aside under Article 226; where for instance no prejudice is caused to the person complaining. The earlier strict construction of the principles (as propounded in Ridge v. Baldwin 1964 SC 40.] that the breach (of principles of natural justice) is itself a prejudice and no other de facto prejudice need be established was no doubt reiterated in S.L. Kapoor v. Jagmohan. Chinnappa . Reddy, J. in Jagmohan however admitted exceptions to the strict rule namely where on the admitted or indisputable facts only one conclusion was possible, it was not necessary to quash the impugned proceedings though in violation of the principles of natural justice.
25. That in addition to breach of natural justice clear prejudice must also be shown, is a principle that has been developed in and over several cases since Jagmohan - See -K.L. Tripathi v. State Bank of India ; State Bank of Patiala v. S.K. Sharma (3
26. In U.P. Awas Evam Vikas Parishad v. Gyan Devi and in Sohan Lal Gupta v. Asha Devi Gupta ., the Supreme Court applied the requirement of establishing prejudice in addition to transgression of a statutory requirement of giving a notice during the course of a decision making affecting rights (as a condition for grant of relief) even under the provisions of the Land Acquisition Act and the Arbitration Act.
27. Even in the statutory context, under the Industrial Disputes Act, 1947 where an order of termination is held invalid for breach of mandatory statutory provisions, the principles is now evolving and is reasonably established that the hitherto normal relief of granting full back wages would not automatically follow and the court may, in its discretion deny full back wages where for instance, that would place an impossible burden on the employer - Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and Anr. ; Hindustan Motor Ltd. v. Japan Kumar Bhattacharya and Anr. ; Indian Railway Construction Co. Ltd. v. Ajay Kumar .; M.P. State Electricity Board v. Jarina Bee (Smt) .; Textile Corporation Ltd. v. P.C. Chaturvedi and Ors. (2005) 8 SCC 211.; General Manager, Haryana Roadway v. Rudhan Singh ; M.L. Binjolkar v. State of Madhya Pradesh
. and U.P. State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey 2005 AIR SCW 6314.
28. The several decisions illustrating the application of the prejudice doctrine firmly establish the principle that the doctrine is applicable both in the natural justice and statutory context, whether the denial of opportunity is qua the principles of natural justice or the requirement of a statute or a statutory rule.
29. The process of judicial review is the product of competing judicial concerns of proper vigilance and proper restraint. Courts have to hold an intricate and informed constitutional balance. They must ensure that pubic bodies are accountable to the law and that abuses and excesses of power do not go unchecked and the liberties and freedoms of citizens are not trampled. On the other hand courts cannot and must not stifle the supervening interests, of an orderly social order by immunizing individual depredators from the due deserts of justice as by law established, by rigid and inflexible insistence on conformity with technical principles even where the violation of the principles result in neither prejudice to the complainant nor alter the outcome of the impugned State action.
30. The tension between vigilance and restraint lies in the concept of materiality and prejudice. The courts reserve the discretion to interfere to ensure decision-making propriety, irrespective of whether there has been a discernible prejudice. On the other hand, courts also employ pragmatism and decline futile challenges, in cases where there is no prospect of the impugned decision having been, or any fresh decision being decided differently in substance. As relief in judicial review is discretionary, good public administration is concerned with substance rather than form. The care, the concern and the need for balancing the competing factors is brought out in R. v. Ealing Magistrates' Court, ex parte Fanneran (1996) Administrative Law Reports
351. In Fanneran (1996) Administrative Law Reports 351 Staughton LJ spelt out the principle of vigilance and restraint: the notion that when the rules of natural justice have not been observed, one can still uphold the result because it would not have made any difference, is to be treated with great caution. Down that slippery slope lies the way to dictatorship. On the other hand if it is a case where it is demonstrable beyond doubt that it would have made no difference, the court may if it thinks fit, uphold a conviction even if natural justice had not been done.
31. The proper role of judicial review is coined in the supervisory, the procedural fairness context. The court is not concerned with the substance or the merit of a decision is the leading expression. Lord Brightman spelt out the principle in Chief Constable of the North Wales Police v. Evans (1982)1 WLR 1155. Judicial Review is concerned, not with the decision, but with the decision making process--Judicial Review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Irrationality, fairness, legitimate expectation often considered as part of the procedural doctrine is at one level also within the substantive package of values. In exercising the supervisory role qua judicial review therefore, courts have to ever be concerned with the paramount need to maintain the balance.
32. In S.K. Sharma (3 supra), the manager of a bank was removed after a process of disciplinary inquiry. After unsuccessfully pursuing a departmental appeal and a review, the employee instituted a civil suit. The trial court decreed the suit finding violation of Rule 68(b)(iii) of the State Bank of Patiala (Officers') Service Regulations viz. non-supply of the statements of witnesses and documents to the employee. After an unsuccessful appeal the bank appealed further to the High Court. The High Court affirmed the findings of the courts below including on an additional ground that the complainant was not examined and thus there was no evidence to sustain the finding of guilt of the employee. Reversing the findings of the High Court and of the courts below and allowing the bank's appeal, the Supreme Court summarized the principles regarding the application of the doctrine of prejudice:
33. (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) in the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/ employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under-"no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evidence. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct, If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, Managing Director, ECIL v. B. Karunakar . The ultimate test is always the same,
viz., test of prejudice or the test of fair hearing as it may be called.
(5) Where the enquiry is not governed by any
rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/ action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/ Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
33. The learned full bench in the order of reference expressed its inability to agree with the judgment of the Full Bench in Venkata Bharani (2 supra), stating that the prejudice doctrine cannot perhaps be extended to cases where the entire set of applicable rules have been ignored. In the present case the 1963 rules were followed in the conduct of the disciplinary proceedings against the petitioner when these rules stood repealed by the 1991 rules, which later rules were in operation on the relevant date (of initiation of the inquiry). This is the clear finding and the conclusion of the full bench and is not the subject matter of the reference.
34. The Full Bench in Venkata Bharani (2 supra) on a comprehensive survey and analysis of extent authority, approved the Division Bench judgment in Rajamallaiah (1 supra) including the principles reiterated by the Division Bench that the complainant must plead and establish that he had suffered a clear prejudice by the violation complained of, to succeed. The Venkata Bharani Full Bench also approved an identical view taken by another Division Bench - Ch. Anitha v. State of A.P . which had also held that apart from a complaint of non-compliance of principles of natural justice, the prejudicial effect of such non-compliance must be pleaded and established. Placing reliance on the decision of the Supreme Court in S.K. Sharma (3 supra) the Full Bench declined to grant the relief to the petitioner, in Venkata Bharani (2 supra). It requires to be noticed that in Venkata Bharani (2 supra), one of the apparent reasons for the Full Bench declining grant of relief to the petitioner on application of doctrine of prejudice, was that the petitioner did not raise either the question of violation of principles of natural justice at any stage nor had put forth any grievance as regards procedural fairness. The only grievance was that the enquiry was conducted under nonexistent and repealed rules and therefore the punishment awarded was without jurisdiction and no independent prejudice need be established in such circumstances. We are in respectful agreement with the principle deducible from the Venkata Bharani Full Bench (2 supra), that even in a case where the disciplinary inquiry is conducted under the 1963 Rules, after the repeal and substitution of those Rules by the 1991 Rules, the applicant or the complainant as the case may be, will have to plead and establish not only that there was a breach or violation of one or more of the 1991 Rules but also the substantial prejudice suffered thereby. The application of the doctrine of prejudice will have to be considered on an analysis of the facts and in the light of the principles spelt out by the Supreme Court in S.K. Sharma (3 supra).
35. One of the grievances of the petitioner herein [vide ground (b)] is that it was not the High Court (the disciplinary authority) but the inquiry officer who had framed the charges and the additional charges. This procedure, according to the petitioner, is inconsistent with Rule 20(2) and (3) of the 1991 Rules. According to the petitioner's interpretation the provisions of Rule 20(2) and (3) require the disciplinary authority itself to draw up the substance of the imputations of misconduct or misbehaviour, into definite and distinct articles of charge.
36. A true and fair construction of Rule 20(3) does not support the petitioner's interpretation. Rule 20(3) of the 1991 Rules read with Rule 20(2) enables the disciplinary authority or the cadre controlling authority to draw up the articles of charge or cause to be drawn up. This clause (highlighted herein) of Rule 20(3) permits the disciplinary authority (the High Court) to direct the inquiring authority to draw up the articles of charge. The resolution of the High Court vide its orders dated 19-11-1997 and 6-1-1998 constitute a decision of the High Court causing the inquiring authority to draw up the articles of charge against the petitioner. As this issue (of the interpretation of Rule 20) is one of substance and the grievance of the petitioner in this regard is of substantive violation of the statutory Rules, we consider it integral to the issues presented for reference to this Larger Bench and have therefore considered it appropriate to interpret the provisions of Rule 20 to the above, limited extent.
37. The other grievances of the petitioner with regard to any other violations, substantive or procedural, will have to be considered by the appropriate Bench of this court hearing this Writ Petition on merits.
38. The mere fact that the 1963 Rules were followed and not the 1991 Rules even in the entirety, is not a circumstance that is perse dispositive of the question whether the doctrine of prejudice is or should be applicable. Whether the violation be of a statutory rule, a package of statutory rules or of principles of natural justice, the applicability or otherwise of the prejudice doctrine would depend upon the circumstances and the guidance on the application of the doctrine is to be found in the conclusions and principles spelt out by the Supreme Court in S.K. Sharma (3 supra) (extracted hereinabove).
39. It also requires to be noticed that though the 1991 Rules have repealed and substituted the 1963 Rules, the later rules are not entirely different from the 1963 Rules. The 1991 Rules are developments on the basic framework of the 1963 Rules. Which rule of the 1991 Rules has been violated in the conduct of disciplinary proceedings against the petitioner, did the petitioner ever make a complaint of such violation either to the enquiring authority, the disciplinary authority or elsewhere in these proceedings, whether the violation is a of a substantive or procedural character, what real prejudice has been suffered by the petitioner on account of the breach of any rule, are all matters that are required to be pleaded and established by the petitioner. All the above issues are to be considered by the appropriate Bench.
40. On a consideration of all the relevant factors including the pleadings in the disciplinary proceedings and elsewhere, it is for the court to be satisfied whether there has been not merely a breach or transgression of any rule but also a substantial prejudice suffered by the petitioner or that the rule violated is of such fundamental character as to itself constitute a transgression of a degree and magnitude which per se justifies invalidation of the impugned order (de hors a de facto prejudice required to be established). It is for the appropriate Bench to weigh and balance the competing claims and interests, on a holistic appreciation of the relevant facts, considered in the context of applicable legal principles and established authority.
41. Though not falling for our referential consideration it is perhaps apposite to notice the less than satisfactory procedure followed in the extension of the 1991 Rules to the conduct of regular departmental enquiries against judicial officers and judicial employees. The High Court must be consulted before the framing of rules regulating inter alia the conduct, control and/or appeal, of judicial officers and other employees of the courts subordinate to the High Court. The rule making authority is however the Government. This is a well-established and by now an ancient principle. The 1991 Rules appear to have been framed, published and promulgated without such consultation while including within the ambit of these rules, the Andhra Pradesh State Higher Judicial & Judicial Services. Though the 1991 Rules were made without consultation with the High Court, this court by the Circular dated 05-12-1997 extended the application of the 1991 rules inter alia to Judicial Officers. Whether this amounts to making and promulgation of the rules by this court (adoptive or referential), is tantamount to post-facto consultation, ratification or acquiescence with the Rules, or even waiver of the consultation requirement, is not clear. Such operational ambiguity in areas where the High Court is consecrated a critical supervisory role under our constitutional scheme, is avoidable. In any event it must be ensured that an impression of self-abnegation of a constitutional responsibility is avoided.
42. The 1991 rules are also substantially framed to regulate the services of a broad category of employees wholly under the control of the State Government, Several provisions of these rules, if grammatically construed, appear incompatible with the supervision and control vesting in the High Court, with respect to judicial officers and other employees of the courts subordinate to the High Court. Prior consultation with the High Court could possibly have avoided such incongruity in the formulation or adoption of statutory rules. Automatic extension of the 1991 Rules to judicial employees besides leading to ambiguity and incoherence is perhaps detrimental to the orderly control by the High Court.
43. A few instances of the inappropriateness of wholesale adoption of the 1991 Rules may be noticed: Rule 9 specifies ten (X) types of penalties classified into minor and major penalties that may be imposed on a Government servant. Rule 11(1) of the 1991 Rules specifies that High Court may impose on members of the Andhra Pradesh State Judicial Service any of the penalties specified in Clauses (i) to (vii) of Rule
9. The rule is silent with regard to the authority competent to impose even minor penalties on members of the Andhra Pradesh State Higher Judicial Service. Rule 12 provides that notwithstanding anything in Rule 11 the Government may impose any of the penalties specified in Rule 9 on members of the State Services. Rule 12 read with Rule 5 and the enumeration of the State Services in Schedule-I, would imply an overarching and supervening power of the Government to impose even minor penalties on members of the Andhra Pradesh State Judicial and Higher Judicial Services. Similarly in the Table under Rule 13 the power of suspension pending enquiry of a member of the State Judicial Service alone is conferred on the High Court. Rule 13 is silent with regard to the authority competent to place a member of the State Higher Judicial Service under suspension pending inquiry. By 1991 and at any rate by 1997, the institutional role of the High Court as the pater familias of the Judiciary in the State is well delineated including by the refinements in the concept of Judicial independence. In the formulation or adoption of Conduct, Control and Appeal Rules, it would therefore have been in the fitness of things if an exclusive package of rules were formulated and published or a separate chapter in the 1991 Rules incorporated for avoiding ambiguity. Such specially formulated rules, having regard to the special role invested in the High Court (to supervise and control the judicial services in the State) have the merit of avoiding needless controversy, conflict and litigation. We need say no more.
44. We answer the reference by declaring that the doctrine of prejudice is generically and in principle applicable even in a context where a departmental inquiry has been conducted wholly under the 1963 Rules though the inquiry was initiated after the coming into force of the 1991 Rules. As to whether relief ought to be granted or declined on a complaint of breach of any one or more of the provisions of the 1991 Rules, the issue must be considered in the factual matrix of each case and on application of the relevant principles gathered from the several precedents including S.K. Sharma (3 supra).
45. The Writ Petition shall be heard by the appropriate bench on its merits, in the light of the conclusions already recorded by the Full Bench and in the light of our conclusions herein.
T.Ch. Surya Rao, J.
1. On a reference made by a Full Bench of this Court by an order dated 8-11-2005, the matter has come before us.
2. I have had the advantage of perusing the two judgments written by Hon'ble Smt. Justice T. Meena Kumari and Hon'ble Sri Justice G. Raghuram. I am in respectful agreement with the eventual conclusion reached by my learned sister to the effect that the prejudice doctrine could still be applied even where the inquiry was conducted ultra vires the 1991 Rules. I have also carefully and minutely perused the well prepared, lucid and knowledgeable judgment of Hon'ble Sri Justice G. Raghuram. I wholly concur with the views expressed by my learned brother. However, I would like to give my own reasons in support of the eventual conclusion.
3. The Full Bench in its order of reference was of the view that the prejudice doctrine could not be extended to the cases where the entire set of applicable Rules had been ignored. It differed with the contra view expressed by yet another Full Bench of this Court in V. Venkata Bharani v. High Court of A.P . The scope of reference seems to be limited and is as to whether the prejudice doctrine can be invoked in a case where the entire set of applicable Rules has been ignored.
4. It needs to be noticed that the procedural provisions incorporated in various service rules framed under the proviso to Article 309 of the Constitution which govern the disciplinary enquiries are nothing but the facets of the rule of audi alteram partem or the rule against bias. Indeed, it has been held so by the Apex Court in State Bank of Patiala v. S.K. Sharma . It is expedient to notice the dictum of the Apex Court in para 12 thus:
The several procedural provisions governing the disciplinary enquiries (whether provided by rules made under the proviso to Article 309 of the Constitution, under regulations made by statutory bodies in exercise of the power conferred by a statute or for that matter by way of a statute) are nothing but elaboration of the principles of natural justice and their several facets. It is a case of codification of the several facets of rule of audi alteram partem or the rule against bias.
Having regard to the same, it is obvious that the procedural provisions contained in the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 framed by the Governor in exercise of the power conferred under the proviso to Article 309 of the Constitution are nothing but elaboration of the principles of natural justice. Any infraction of the procedural provisions governing disciplinary enquiries had the effect of invalidating the enquiries conducted and the action taken pursuant thereto as invalid, was the view prevalent in England and in India as well as could be seen from the first authoritative pronouncement on this point is that of the House of Lords in Ridge v. Baldwin 1964 AC 40.. It was held inter alia in the said judgment thus:
Then there was considerable argument whether in the result the watch committee's decision was void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad [(1874) LR 9 Exch 190] I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.
5. It is thus manifest that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigor of the Rule has been relaxed not only in England but also in India. In fact, in many a case, the Apex Court since the case of K.L. Tripathi v. State of Bank of India has consistently applied the principle of
Mansoor Ali Khan ..
6. It is expedient to extract the relevant observations made by the Apex Court in Aligarh Muslim University v. Mansoor Ali Khan in para 24 thus:
24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India ,
Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp.472-75), as follows: (SCC p.58, para 31)
It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma (2 supra). In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. (5 supa).
7. It is by now well-settled that violation of natural justice is by itself no longer sufficient to invalidate the State action. A clear prejudice that has been suffered by the violation needs to be pleaded and demonstrated. This is the concurrent and operative doctrine. Vide K.L. Tripathi v. S.B.I. (4 supra); Rajendra Singh v. State of M.P. (5 supra); M.C. Mehta v. Union of India (6 supra); Aligarh Muslim University v. Mansoor Ali Khan (7 supra) above referred to and S.L. Kapoor v. Jagmohan ..
8. Suffice to quote the decision of the Apex Court in M.C. Mehta v. Union of India (referred to 6 supra) rendered while placing reliance upon its earlier judgment in Gadde Venkateswara Rao v. Govt. of Andhra Pradesh . At the end of para 18 it has been held thus:
The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law.
9. Yet another dimension with reference to which the problem can be examined is that violation of each and every provision of the statutory rules may not furnish a ground for the Court to interfere. The nature of the provision is required to be noticed in the first instance. Some of the provisions in the statutory rules relevant in the context may be substantive in nature and some may be procedural. Among the procedural provisions, again it may be either mandatory or directory. Apropos the directory provisions, substantial compliance of the provisions would be enough. Unless it is established that violation of directory provision has resulted in loss or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as matter of course. For, the mandatory provision can, still in the interest of party, be waived by a party unlike a mandatory provision conceived in the interest of public. In other words, wherever a complaint of violation of mandatory provision is made, the Court should enquire as to in whose interest the provision is conceived. If it is not in the interest of public, the question of waiver and acquiescence may arise, subject of course to the pleadings of the parties. Indeed, these principles have been enunciated by the Apex Court in Krishan Lal v. State of J&K and State Bank of Patiala v. S.K. Sharma (referred to 2 supra). They have been reiterated in Rajendra Singh v. State of M.P. (referred to 5 supra).
10. What clearly emerges from the above discussion is that the various rules framed under the proviso to Article 309 of the Constitution are neither wholly substantive in nature nor wholly procedural in nature. Among the procedural provisions, some of them may be mandatory and some may be directory. Among the mandatory provisions, some of them may be personal involving no public interest therein. Unless the Rule is in the nature of a substantive provision, the infraction thereof cannot have the effect of vitiating the enquiry. Even among the procedural provisions, there may be some provisions of fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available. However the party interested may waive the provision when, it is not couched in public interest. But, in respect of the procedural provisions, other than that of a fundamental nature, the theory of substantial compliance would be available and in such cases complaint/objection on that score has to be judged on the touchstone of prejudice. The test is if all things taken together whether the delinquent officer/employee had or did not have a fair hearing.
11. Keeping in view the above law, the provisions of 1991 Rules shall have to be examined. Coming in the realm of Part-V under the caption "Procedure for imposing penalties" Rule 20 is germane in the context which may be excerpted hereunder insofar as necessary for the present purpose for brevity and better understanding.
PART-V. PROCEDURE FOR IMPOSING PENALTIES
Procedure for imposing major penalties:
20. (1) No order imposing any of the penalties specified in Clauses (vi) to (x) of Rule 9 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 21 or in the manner provided by the Public Servants (Inquiries) Act, 850 (Central Act 37 of 1850) or the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 or the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983, where such inquiry is held under the said Acts.
(2) Whenever the disciplinary authority is of the opinion that there are grounds of inquiry into the truth of any imputation of misconduct or misbehaviour against a Government Servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, authority to inquire into the truth thereof.
Explanation:- Where the disciplinary authority itself holds the inquiry, any reference in Sub-rule (7) to Sub-rule (20) and in Sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
(3) Where it is proposed to hold an inquiry against a Government Servant under this rule and Rule 21, the disciplinary authority or the cadre controlling authority who is not designated as disciplinary authority and who is subordinate to the appointing authority can draw up or cause to be drawn up.
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge.
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain.
(a) A statement of all relevant facts including any admission or confession made by the Government Servant.
(b) A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each articles of charge is proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
(5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint under Sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government Servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 21.
(b) If no written statement of defence is submitted by the Government Servant the disciplinary authority may itself inquire into the articles of charge or may, if it considers necessary to do so, appoint, under Sub-rule (2) an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government Servant or a legal practitioner, to be known as the "Presiding Officer" to present on its behalf the case in support of the articles of charge.
(6) The disciplinary authority shall, where it is not inquiring authority, forward to the inquiring authority:
(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of defence, if any, submitted by the Government Servant;
(iii) a copy of the statements of witnesses, if any, referred to in Sub-rule (3).
(iv) evidence proving the delivery of the documents referred to in Sub-rule (3) to the Government Servant; and
(v) a copy of the order appointing the "Presenting Officer".
(7) to (17) ....
(18) The inquiring authority may, after the Government Servant closes his case, and shall, if the Government Servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him.
12. A mere glance at the provision herein above excerpted it is obvious that it deals with the procedure for imposing major penalties. Under Sub-rule (1) thereof, it mandates that no order imposing any of the penalties specified in Clauses (vi) to (x) of Rule 9 shall be made except after an enquiry held, in accordance with the procedure envisaged inter alia therein. However, it further reads that the enquiry may be held as far as may be in the manner provided in that Rule. Under Sub-rule (2), the disciplinary authority may itself enquire into any imputation of misconduct or misbehaviour qua a Government Servant or it may appoint an authority to enquire into the truth thereof. Under Sub-rule (3) if the disciplinary authority proposes to hold an enquiry, it can draw up or cause to be drawn up, the substance of imputations of misconduct or misbehaviour
into definite and distinct articles of charge. Under Sub-rule (4) thereof, the disciplinary authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge annexing therewith other relevant documents enumerated inter alia in the Rule and then shall require the Government Servant to submit a written statement of his defence. Under Sub-rule (5) the disciplinary authority after receiving the written statement of defence from the delinquent may itself enquire into such of the articles of charge as are not admitted or appoint an enquiring authority for that purpose. Under Sub-rule (6) where the disciplinary authority itself is not the enquiring authority and appoints an enquiring authority, forward to it a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour, a copy of the written statement of defence, a copy of the statements of witnesses, if any, etc.
13. Yet another important provision is Sub-rule (18). It mandates that the enquiring authority after the closure of evidence generally shall question the Government Servant on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him.
14. Although at the outset and as can be seen from the heading of the Chapter-V, Rule 20 is a procedural one, it appears that not all the provisions contained inter alia therein are procedural. In my considered view, Sub-rule (18) is in the nature of substantive provision which confers a right upon the delinquent Government Servant to explain the circumstances appearing in the evidence recorded against him. That provision is akin to Section 313 of the Code of Criminal Procedure wherein it is mandatory to examine the accused at the closure of the evidence on the side of the prosecution.
15. However, it is for the writ Court to examine the provision with reference to the matrix so as to arrive at the necessary conclusion as to which among the various sub-rules mentioned inter alia in Rule 20 are directory in nature and which are mandatory in nature; more particularly, which of them are procedural and any of them partakes the character of a substantive provision. After such scrutiny the Court can eventually proceed to decide the writ in accordance therewith.
16. The reference is answered accordingly.