2008(3) ALL MR 293
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.K. DESHMUKH AND V.M. KANADE, JJ.
Dr. Jaysing Baburao Ghugare Vs.State Of Maharashtra & Ors.
Writ Petition No.2320 of 2000
15th February, 2008
Petitioner Counsel: Mr. S. P. THORAT
Respondent Counsel: Ms. S. S. BHENDE
Constitution of India, Art.226 - Departmental proceedings - Natural Justice - Enquiry - Petitioner not participating in major part of the enquiry - Cannot be heard to make any grievance that the enquiry was not held in accordance with principles of natural justice - Non-supply of enquiry report - Court or Tribunal before whom penalty imposed without supplying copies of enquiry report is challenged, cannot set aside the penalty merely on finding that the copy of enquiry report was not supplied. (1993)4 SCC 727 - Rel. on. (Para 9)
Union of India Vs. Mohd. Ramzan Khan, (1991)1 SCC 588 [Para 6,9]
Managing Director, ECIL, Hyderabad Vs. B. Karunakar, (1993)4 SC 727 [Para 9,10]
Union Bank of India Vs. Vishwa Mohan, AIR 1998 SC 2311 [Para 10]
JUDGMENT :- By this petition the Petitioner challenges the order passed by the Maharashtra Administrative Tribunal in Original Application No.588 of 1991. By that order the Maharashtra Administrative Tribunal has dismissed the application filed by the Petitioner. The Petitioner who was holding the post of Joint Director of Agricultural, State of Maharashtra challenged the order passed by the State of Maharashtra imposing punishment of compulsory retirement on him for the misconduct which he was found to have committed. The Petitioner was working as in-charge Director of Horticulture between 1-7-1981 to 20-7-1982. Thereafter, he was appointed as Director of Horticulture, Maharashtra State. He was working as Director of Horticulture between February, 1982 and December, 1982. It was found that during this period certain action of the Petitioner amounted to misconduct. Therefore, the Government ordered departmental enquiry to be held against him. That order was made on 28-2-1986. A charge-sheet levelling as many as eight charges was served on him. An officer was appointed to hold the departmental enquiry.
2. So far as departmental enquiry is concerned, the Petitioner did not file his reply to the charge-sheet. He filed mere one line reply denying all the charges. He did not submit any explanation in relation to the charges. He applied for supply of copies of certain documents. He also filed a writ petition in the High Court making grievance about non-supply of certain documents to him. The High Court disposed of his writ petition by order dated 27th April, 1989. The High Court did not issue any direction for supply of any documents.
3. So far as participation in the departmental enquiry is concerned, to some extent he participated in the enquiry. But it appears that after his writ petition was decided, he did not participate in the enquiry, did not cross-examine any witness that were examined on behalf of the Government. The enquiry officer found that charges Nos.1 & 4 were duly proved, charges Nos.2, 3 & 8 were partially proved and charges Nos.5, 6 & 7 were not proved. The enquiry officer submitted his report to the Government, which is the disciplinary authority and the Government by order dated 3rd October, 1991 ordered imposition of punishment of compulsory retirement against the Petitioner.
4. Feeling aggrieved by the order imposing punishment, the Petitioner approached the Maharashtra Administrative Tribunal. It appears from the order of the Maharashtra Administrative Tribunal that three grounds were urged before the Maharashtra Administrative Tribunal, (i) that the charges levelled against him are vague; (ii) the departmental enquiry was held in violation of principles of natural justice. Copies of certain documents sought by him were not supplied to him and (iii) that the report of the enquiry officer was not supplied to him by the disciplinary authority before imposing punishment.
5. The Maharashtra Administrative Tribunal in its order has quoted the charges and has recorded the findings that by no stretch of imagination the charges which have been found to be proved against the Petitioner can be termed as vague. The Maharashtra Administrative Tribunal also held that the departmental enquiry officer had followed the principles of natural justice in holding the enquiry. It also held that by non-supply of the copies of the documents, no prejudice can be said to have been caused to the Petitioner. The Tribunal also held that it is true that the copies of enquiry report was not supplied to the Petitioner. Relying on the judgment of the Supreme Court the Tribunal held that mere non-supply of copies of the enquiry report by itself does not vitiate the punishment. The Petitioner had to establish as to how prejudice was caused to his interest because of non-supply of the copies of the enquiry report. The Tribunal held that this has not been done and therefore ultimately the Tribunal dismissed the application.
6. Before us the same contentions which were raised before the Maharashtra Administrative Tribunal were reiterated. The learned Counsel appearing for the Petitioner relied on the judgment of the Supreme Court in the case of Union of India and ors. Vs. Mohd. Ramzan Khan, (1991)1 SCC 588, to contend that because of non-supply of copy of enquiry officer's report, the order imposing penalty is liable to be set aside. The learned Counsel also submitted that on the basis of the evidence which was before the enquiry officer, the charges levelled against the Petitioner cannot be said to have been proved.
7. Now, so far as the submission made on behalf of the Petitioner that the charges levelled against the Petitioner cannot be said to have been proved on the basis of the evidence before the enquiry officer is concerned, it is clear from the order of the Maharashtra Administrative Tribunal that contention was not urged before the Maharashtra Administrative Tribunal. It is further to be seen that this court is not an appellate authority sitting in appeal over the decision of the disciplinary authority and therefore, this court cannot go into sufficiency or otherwise of the evidence that is on record.
8. So far as the submission that non-supply of copies of the documents vitiates the enquiry is concerned, it appears that the Petitioner had applied requesting the enquiry officer to supply him copies of certain documents. On his application for supply of copies of the documents, the enquiry officer had made a detailed order dated 19-12-1988. The Petitioner had also approached the High Court by filing writ petition making grievance about non-supply of copies of the documents to him. The High Court did not issue any directions to the enquiry officer and disposed of the petition.
9. Now, it is clear that if certain documents relied on in the charge-sheet, the Petitioner would be entitled to copies of those documents or certain documents may become relevant in view of the defence that is raised by the delinquent, the learned counsel appearing for the Petitioner could not point out to us that he had asked for copies of any of the documents which were relied on in the charge-sheet and they were not supplied. The Petitioner admittedly had not filed his explanation to the charge-sheet and therefore, there is no question of any document becoming relevant for the enquiry because of the explanation submitted by the Petitioner. The learned Counsel could not point out to us as to what prejudice was actually suffered by the Petitioner because of non-supply of the copies of the documents. It appears from the order of the Maharashtra Administrative Tribunal that it has inquired into this aspect of the matter in detail. In our opinion, therefore, there is no patent illegality in the manner in which the enquiry was held by the enquiry officer. What is significant is that the Petitioner has not participated in the major part of the enquiry. He has not cross-examined the witnesses. Now, for example charge No.8 levelled against the Petitioner was that certain vehicles were purchased by the Government from M/s. Mahindra & Mahindra and the bank draft was taken out for making payment to M/s. Mahindra & Mahindra. The Petitioner took possession of that bank draft. Instead of having that bank draft delivered to the company in whose favour that bank draft was drawn, kept that bank draft with himself for four months and got that bank draft delivered not to M/s. Mahindra & Mahindra but to some other agency. There is a letter on record which has been reproduced verbatim by the enquiry officer in his report written by the agency to whom bank draft was delivered. Wherein it is specifically stated that they have received the bank draft from the Petitioner. Now, there was no real reason for the Director of Horticulture keeping in his custody bank draft drawn in favour of the manufacturer of the vehicles. The letter on record proves that the Petitioner had the bank draft in his possession. Witnesses have been examined. Those witnesses have not been cross-examined by the Petitioner. In our opinion, therefore, the Petitioner who has not participated in the major part of the enquiry, cannot be heard to make any grievance that the enquiry was not held in accordance with the principles of natural justice. So far as the grievance made about non-supply of the report of the enquiry officer before imposition of the penalty is concerned, it is clear from the judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and ors. Vs. B. Karunakar and ors., (1993)4 SC 727 that it is the judgment of the Constitution Bench, that Constitution Bench was constituted to consider the judgment of the Supreme Court in the case of Union of India Vs. Mohd. Ramzan Khan, (1991)1 SCC 588. The Supreme Court has held that the court or the tribunal before whom penalty imposed without supplying copies of enquiry report is challenged, is not justified in setting aside the penalty merely on finding that the copy of the enquiry report was not supplied. The observations of the Supreme Court in paragraph 30(v) and paragraph 31 of its judgment in the case of B. Karunakar, in our opinion, are relevant. They read as under :-
"30(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the enquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefit, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh enquiry is held. That will also be the correct position in law."
10. It is clear from the observations of the Supreme Court quoted above that the court cannot set aside the order imposing punishment merely on finding that the punishment has been imposed without supplying copy of the enquiry report. It is for the delinquent/employee to satisfy the court or the tribunal that real prejudice was caused to his interest because of non-supply of that enquiry report. Same view has been reiterated by the Supreme Court in its judgment in the case of Union Bank of India Vs. Vishwa Mohan, AIR 1998 SC 2311. Perusal of the order of the Maharashtra Administrative Tribunal shows that it has relied on the judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra) and has held that when the Petitioner approached the Maharashtra Administrative Tribunal he had in his possession the report of the enquiry officer which was supplied to him alongwith the order imposing punishment and therefore it was for him to demonstrate to the Maharashtra Administrative Tribunal that prejudice is caused to his interest by non-supply of copy of the enquiry report. The Maharashtra Administrative Tribunal in paragraph 19 of its order has considered this aspect of the matter in detail and has held that non-supply of copy of enquiry report has not really resulted in causing any prejudice to the interest of the Petitioner. Before us not even an attempt was made to show that the finding recorded by the Maharashtra Administrative Tribunal that non-supply of copy of the enquiry report has resulted in any prejudice to the interest of the Petitioner. Whole emphasis of the learned Counsel for the Petitioner was that non-supply of copy of the enquiry report before imposing punishment itself is enough to set aside the order imposing punishment. In our opinion, that is not the law laid down by the Supreme Court.
11. After having gone through the record and after having heard the learned Counsel for the Petitioner and the Respondent, we find that the order passed by the Maharashtra Administrative Tribunal is a well-considered and detailed order. The Maharashtra Administrative Tribunal has considered every aspect of the matter minutely and we do not find a single reason to disagree with the view that has been taken by the Maharashtra Administrative Tribunal.