IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 254 OF 2008
STATE OF U.P. & ORS. .APPELLANT(S)
VERSUS
SAROJ KUMAR SINHA ....RESPONDENT(S)
JUDGMENT
SURINDER SINGH NIJJAR, J.
This appeal has been filed by the State of U.P.
challenging the order passed by the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ
Petition No.46 (S/B) of 2005 whereby the High Court allowed
the writ petition of the respondent by quashing and setting
aside the order of his removal dated 24.12.2004 and further
directing his reinstatement in service with all consequential
benefits.
2. The respondent had been in the service of the
appellant since 17.5.1971. During the period 6.1.2001 to
12.2.2001 and from 17.3.2001 to 28.4.2003 he was posted
as Executive Engineer at Construction Division-I, Public
Works Department (P.W.D.), Rai Barielly. While functioning
2
at Rai Barielly, he was served with the charge sheet dated
24.2.2001 under Rule 7 of the U.P. Government Servant
(Discipline & Appeal) Rules, 1999 (hereinafter referred to as
1999 Rules) making serious allegations of misconduct
against him.
3. The respondent having been initially selected through
the Lok Sewa Ayog, U.P. was appointed as an Assistant
Engineer in the Public Works Department on 17.5.1971 in a
substantive capacity. In due course he was promoted as
Executive Engineer.
4. We may notice here that the 1999 Rules have been
promulgated by the Governor of U.P. in exercise of the
powers conferred by the proviso to Article 309 of the
Constitution of India. The Rules prescribe detailed
procedure to be followed in matters of enforcing discipline
and imposing penalties/punishments against government
servants in U.P., in cases of proven misconduct. Rule 3 gives
a list of minor and major penalties that may be imposed by
the appointing authority on the government servants.
Removal from service is a major penalty. Rule 4 provides
that the government servant may be suspended in case an
enquiry is contemplated against him. In the present case,
the respondent was suspended on 5.2.2001 prior to the
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issue of the charge sheet dated 24.02.2001. We presume it
was in contemplation of the forthcoming disciplinary
proceedings against him. Rule 7 prescribes in detail, the
procedure and the manner in which an enquiry shall be
conducted before imposing any major penalty on a
government servant. Rule 7 sub rule (2) provides the facts
constituting the misconduct on which it is proposed to take
action shall be reduced in the form of definite charge or
charges to be called charge sheet. This charge sheet has to
be approved by the disciplinary authority. Rule 7 sub rule
(3) further provides that the charge(s) framed shall be so
precise and clear as to give sufficient indication to the
charged government servant of the facts and circumstances
against him. It is mandatory that the proposed documentary
evidence and the name of witnesses proposed to prove the
charges together with any oral evidence(s) that may be
recorded be mentioned in the charge sheet. Thereafter
under Rule 7 sub rule (4) the government servant is given an
opportunity to put in a written statement, of his defence,
within a specified period of time which shall not be less than
15 days. The government servant is also required to indicate
whether he desires to cross examine any witnesses
mentioned in charge sheet. Thereafter he is to be informed
4
that in case he does not appear or file the written statement
it will be presumed that he does not intend to furnish any
defence. In such circumstances the enquiry shall proceed ex
parte. Sub rule 5 of Rule 7 mandates that the copies of the
documentary evidence mentioned in the charge sheet has to
be served on the government servant along with the charge
sheet. The aforesaid sub rule is as under:
"(v) The charge-sheet, along with the copy of
documentary evidences mentioned therein and
list of witnesses and their statements, if any
shall be served on the charged Government
servant personally or by registered post at the
address mentioned in the official records in case
the charge-sheet could not be served in
aforesaid manner the charge-sheet shall be
served by publication in a daily newspaper
having wide circulation:
Provided that where the documentary evidence
is voluminous, instead of furnishing its copy
with charge-sheet, the charged Government
servant shall be permitted to inspect the same
before the Inquiry Officer."
5. A perusal of the aforesaid rule would clearly show that
the disciplinary authority is duty bound to make available all
relevant documents which are sought to be relied upon
against the government servant in proof of the charges. It is
only when the charge sheet together with documents is
supplied that the government servant can be said to have
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had an effective and reasonable opportunity to present his
written statement of defence.
6. Keeping in view the mandate of the aforesaid sub rule
the respondent made a written request to the appellant
demanding copies of the documents relied upon in the
charge sheet. This representation was dated 10.6.2001. In
spite of the mandate of the 1999 Rules neither the
disciplinary authority nor the enquiry officer made the
documents available to the respondent rather a reminder
was issued to him by the enquiry officer on 15.6.2001 to
submit the reply to the charge sheet.
7. Apprehending that the inquiry officer may be biased
respondent submitted a representation on 19/6/2001 to the
Government for change of the inquiry officer. This request of
the respondent was accepted by the Government by office
memo dated 22.9.2001. It later transpired that the inquiry
officer, Mr. I.D. Singhal, had already completed the inquiry
report on 3.8.2001 whereas the new inquiry officer, G.S.
Kahlon was appointed on 22.9.2001. The respondent only
came to know about the existence of inquiry report dated
3.8.2001 in the month of April, 2003.
8. Being unaware of the inquiry report dated 3.8.2001
respondent made the representation dated 6.10.2001 to the
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new inquiry officer, G.S. Kahlon praying for supply of the
relevant documents numbering 19 to enable him to prepare
an appropriate reply to the charge sheet and to prepare his
defence. Since, no response was received from the inquiry
officer the respondent sent a reminder dated 22.11.2001.
The last reminder submitted by the respondent is dated
3.3.2002.
9. The respondent later came to learn that the inquiry
officer had addressed a communication to the Government
dated 8.4.2002 stating that the inquiry report dated
3.8.2001 submitted by the former inquiry officer, Mr. I.D.
Singhal "seems to be correct" because the delinquent officer
should be deemed to have accepted the charges levelled
against him inasmuch as he had not submitted the
reply/explanation to the charge sheet. Based on the inquiry
report dated 8.4.2002, which merely reiterated the findings
in the inquiry report dated 3.8.2001, respondent was served
a show cause notice dated 29.4.2003.
10. At this stage the respondent challenged the issuance
of the show cause notice in Civil Writ Petition No.937 of
2003. The respondent had sought quashing of the two
inquiry reports as well as the show cause notice. He also
made a prayer that a fresh inquiry be conducted by giving
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appropriate opportunity to him to submit his defence. The
aforesaid writ petition was disposed of with the following
order:
"We do not intend to interfere with the matter
but would like to observe that we have not
adjudicated the matter of the petitioner on
merits nor we intend to observe that the case set
up by the petitioner is correct on merit,
therefore, it will be open to the petitioner to put
his case before the authority concerned while
submitted his reply to the Show Cause Notice. In
case such a reply is given within a period of 15
days, the same shall be considered before
passing any final orders in the matter."
11. The respondent furnished the certified copy of the
aforesaid order to the appellant on 25.7.2003. In this
communication respondent also mentioned that he would
soon submit a detailed representation/reply in response to
the show cause notice dated 29.4.2003. He accordingly
submitted the representation on 6.8.2003 briefly touching
upon the circumstances in which the aforesaid two inquiries
were held. He pointed out that the aforesaid two inquiries
had been held in patent violation of principles of natural
justice, fairness and justice, as well as the basic
requirements of law relating to departmental inquiry. The
respondent reiterated his utter helplessness in making an
effective reply to the show cause notice as he had not been
supplied the relevant documents in spite of numerous
8
representations and reminders. He again made a plea for
supply of documents.
12. Ultimately the respondent was served a copy of
communication dated 19.11.2003 from the office of the
Executive Engineer (Prantiya Khand), P.W.D. Rai Bareilly
addressed to the Executive Engineer (Nirman Khand-I),
P.W.D., Rai Bareilly directing supply of the copies of the
relevant documents to the respondent. A perusal of this
letter would clearly show that the documents were not
available in the office of the Executive Engineer (Nirman
Khand-I). The observations made by the Executive Engineer
(Prantiya Khand) in his communication dated 19.11.2003
are as under:
"Therefore, you are requested to collect
the aforesaid three letters issued from the
Government level and five letters issued from
the level of Engineer-in-Chief level and two
letters from your own level and as per the
direction by the Government send the same to
Sh. S.K. Sinha, Executive Engineer at his
Lucknow address."
13. Inspite of this direction the documents were not
supplied. The respondent therefore again made a
representation to the inquiry officer on 30.11.2003 for
supply of certified photocopies of the relevant documents.
9
14. It was not disputed before the High court nor is it
disputed before us that the documents were not supplied to
the respondent. In fact, in the counter affidavit filed before
the High Court, in reply to the grievance made by the
respondent in the writ petition, about non-supply of the
documents, it has been stated as under:
"Petitioner has requested for supply of
certain documents to the enquiry officer
regarding which it is stated that the petitioner
has been informed that the documents
pertains to the division in which petitioner has
been posted as Executive Engineer. Therefore,
it was not required to supply the same as the
documents were in his custody and the
petitioner has deliberately delayed the filing of
reply. Therefore, Enquiry Officer has sent the
enquiry report after the completion of enquiry
to the Govt. on the basis of documents on
03.08.2001."
15. Thereafter the then Principal Secretary, PWD, Shri
Chandra Pal addressed a communication on 16.4.2004 to
the Secretary of Public Service Commission, U.P., Allahabad
recommending and proposing the punishment of removal
from service as well as recovery of the sum of Rs.1,29,600/-
be inflicted on the respondent. Aggrieved by the
recommendation the respondent addressed a representation
to the Commission setting out the entire factual situation
vide communication dated 30.5.2004.
10
16. Further more, the respondent again moved the
Allahabad High Court by preferring Civil Writ Petition No.793
(SB) of 2004. In this writ petition respondent had made a
prayer to restrain the appellant from taking any final
decision with regard to the proposed removal of the
respondent from service. In the aforesaid writ petition, the
Division Bench passed an interim order on 17.6.2004 with
the observations as under:
"In the meantime, opposite parties no.1 and 2
are expected to ensure the compliance of the
order passes by the Division Bench of this Court
on 23.7.2003 as contained in Annexure No.6 of
this writ petition. Further representation of the
petitioner, if submitted in pursuance of the
order passed by this Court on 23.7.2003, shall
be considered before conclusion of the
departmental inquiry and passing final order."
17. It is the claim of the respondent that despite the pre-
emptory direction of the High Court in the aforesaid order
appellant-Government passed the order of removal dated
24.12.2004 removing the respondent from service and
directed recovery of Rs.1,29,600/- from him. Passing of the
aforesaid order was brought to the notice of the High Court
by the respondent, which by order dated 12.1.2005 directed
that no recovery shall be made from the respondent
pursuant to the order of removal.
11
18. Upon due consideration of the extensive pleadings of
the parties, the Division Bench has recorded the following
conclusions:
"After hearing the rival submission of
learned counsel for the parties as well as the
averments made in the affidavits, we are of the
view that the inquiry officer has not afforded
opportunities to the petitioner insofar as he fails
to supply the documents to the petitioner which
he has relied while framing the charges and
further the petitioner was not afforded
opportunity to lead the evidence and also denied
the opportunities to cross-examination of the
person. The inquiry officer has also failed to
prove the charges during the inquiry
proceedings by the recording any evidence.
Thus, the inquiry is vitiated and is violation of
principle of natural justice."
19. With these observations the writ petition has been
allowed. The appellant has been directed to reinstate the
respondent with all consequential benefits. However, the
State was granted liberty to conduct fresh inquiry in
accordance with law and the principles of natural justice.
20. We have heard the learned counsel for the parties.
21. We have noticed at some length the sequence of events
and the efforts made by the respondent to receive copies of
the documents which were relevant for the preparation of his
defence in the departmental inquiry. As noticed earlier all
the requests made by the respondent fell on deaf ears. In
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such circumstances, the conclusions recorded by the High
Court were fully justified.
22. Copies of the documents which formed the foundation of
the charge sheet against the respondents have been denied
to the respondent on the lame excuse, as projected in the
pleadings of the appellant, at different stages before the High
Court as well as this Court, that the respondent, at the
relevant time, was posted in the same division and the
documents could have been received by him and the reply
could have been given. According to the appellant all the
concerned documents were with the Division in which the
petitioner (respondent herein) was posted as Executive
Engineer. In the counter-affidavit filed in the High Court it is
specifically mentioned that the documents pertain to the
same division in which the respondent had been posted as
Executive Engineer and therefore he being in knowledge and
custody of the said documents, there was no requirement for
the said documents to be supplied to the respondent. The
very same submission has been reiterated before us by the
learned Counsel of the Appellants. In our opinion, the
submission is without any basis as the respondent had been
suspended on 5.2.2001. Even if the respondent had
continued in the same department it would not have been
13
possible for him to take the custody of the documents as he
would no longer be in charge of the office. Further more, it is
evident from the letter dated 19.11.2003 that the documents
had to be collected from different offices and made available
to the respondent. This fact is so mentioned in the letter of
the Executive Engineer. In such circumstances, we are
unable to accept the submission of the learned counsel for
the appellants that it was possible for the respondent to
make an effective representation against the charge sheet.
23. At this stage it would be appropriate to notice the
charges that had been framed against the respondent which
are as under:
"I. Work pertaining to Salon Jagat Pur Road, had
been given to Sri Jitendra Mohan Bajpai,
Contractor vide Tender No.5/AE-2 dated
10.06.1996 through 3054-PW Work Plan. The
last payment of the Tender has been paid by the
then Executive Engineer Sri Akash Deep Sonkar
and accordingly payment of Rs.193047/- was to
be paid vide cheque No.13/256064 dated
02.08.1996. Thereafter you have made this
payment through No.142 dated 31.12.1998 to
the amount of Rs.193047 through Cheque
No.78/001355 dated 31.12.1998. At page 138
of the Cash Book Part-73, Entry No. illegible has
been made. You have deliberately made
aforesaid entry in order to cause loss to the
Govt. and had made the payment twice through
voucher No.142 for the amount 193047 dated
31.12.1998 and the amount of Rs.193047 has
been changed to 134305. Therefore the
payment of Rs.58742 which has already made
14
has been shown to be not paid in the aforesaid
entry.
In this manner you have deliberately
caused loss to the Government by the fraudulent
act conspiring for the same and had recovered
Rs.58742/- from the contractor through voucher
No.141 dated 21.3.2000, reason for which has
been mentioned that Rs.58742 has been
deducted due to excess payment made for the
work at Salon Jagat Pur Road through voucher
No.142 dated 31.12.1998. Nowhere in voucher
No.142 dated 31.12.1998 it is mentioned that
due to what reason deduction has been made
after the issuing of cheque regarding the amount
to be paid which shows bad intention on your
part. You have made wrong entries regarding
deduction mention in the voucher amount which
is proved to be violation of financial handbook
Section-5(Part-1) para 4 D and 83. Voucher
No.141 dated 31.03.2000 and entry to such
effect proves that the Divisional Accounts Officer
has issued the cheque of Rs.0185777/-
regarding the aforesaid payment through cheque
and the cheque for amount Rs.0185777/- has
been passed by the Assistant Engineer. At the
time of issuing cheque deduction of Rs.58742/-
from the amount to be paid makes your conduct
suspicious and you are found responsible for the
misconduct in this regard. Therefore, you are
found guilty of misconduct according to Para 3
U.P. Govt. Servant Conduct Rules 1956.
II. You had passed order for supply of mobile
patcher 6 to M/s B.N. Traders, Karhal
Mainpuri through letter Memo-2/Camp-
72-99 dated 17.07.1999, M/s B.N.
Traders, Karhal Mainpuri had submitted
receipt No.149 regarding the aforesaid
supply. The supply has been passed for
the amount of Rs.129600/- by the Asstt.
Engineer and had been passed by you for
the amount of Rs.129600/- vide Cheque
No.96/002075 dated 16.11.1999. The
Cheque dated 16.11.1999 has been issued
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to your name which has been provided for
the payment to B.N. Traders to Bank
draft. In the place of this cheque you had
issued Cheque No.005/003492 dated
13.11.1999 for Rs.129600/- to M/s B.N.
Traders and had to be encashed by them.
It is clear from the documents that the
original cheque dated 31.11.1999 has
been cut and self has been inserted and
the cheque has been encashed by you. In
the counter filed of cheque book name of
M/s B.N. Trader had been mentioned.
Therefore, the cheque has been wrongly
encashed by you after making fraud entry
by self name and the amount has not been
taken in cash book. Therefore, the forgery
in this regard is proved. You have made
bank drafts in favour of M/s B.N. Traders
on 08.03.2000 for Rs.129600/- from State
Bank of India, Rai Bareilly. In the
application of form of the draft the name
of M/s B.N. Traders is mentioned whereas
the order regarding supply of the draft to
M/s B.N. Traders, Karhal, Mainpuri has
been made in favour of the firm. Therefore
bank draft was to be sent on the address
of Mainpuri. M/s B.N. Traders, Karhal,
Mainpuri had informed Chief Engineer,
Lucknow on 28.07.2000 that you have
made payment at the address of firm in
Mainpuri. In this regard the bank draft
has been made in the name of M/s B.N.
Traders and the draft amount has been
received in the name of your relative and
no payment as such has been made to
M/s B.N. Traders. You had cut the
cheque and had violated Para 77 of the
financial handbook Section 6 and Para 19-
22 of financial handbook Section 5, Part-I.
Receiving of payment after cutting the
name of firm from the cheque and
entering our own name (self) shows that
the payment had been received after
committing fraud. Again in order to
conceal this Act you had made draft
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No.PL00008/392289 dated 08.03.2000 for
Rs.129600/- from SBI, Rai Bareilly. The
bank draft had been made for the address
of Lucknow of the firm not of the address
Karhal, Mainpuri so that the fraud can be
committed and no payment as such has
been made to the firm. The firm has
alleged that you had received payment
after committing fraud therefore, you are
found guilty and misconduct regarding the
misappropriation of amount of
Rs.129600/- after committing fraud on
the documents and violating the financial
rules. You are also held guilty for mis-
conduct according to para 3 U.P. Govt.
Servant Conduct Rules 1956.
III. Case No.37/98 has been instituted for
adjudication between M/s Indian Coal
Suppliers vs. Govt. of U.P. The case has
been decided on 05.01.2000 according to
which demand for Rs.26, 00,000/- along
with interest has been made by the
concerned firm from the Department. The
fact has been in your knowledge that the
option of appeal in the aforesaid case has
been rejected by the Govt. In such
situation you had not prepared the
defence regarding validity of the
agreement during framing of issues in
proper manner. The case has been
dismissed only on the ground of deficient
Court Fees. You have deliberately
appointed Special Advocate without
permission of Govt., had not paid Court
Fees and had colluded with M/s Indian
Cola Suppliers to cause loss of
Rs.26,00,000/- to the Govt. by presenting
weak case before the court in order to
cause benefit to the contractor. The
aforesaid Act is violation of para 9.01,
9.02 and 9.03 of financial handbook and
para 3 of U.P. Govt. Servant Conduct
Rules 1956."
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24. A bare perusal of the aforesaid charges shows that the
three charges were based on official documents/official
communications. We have earlier noticed the relentless
efforts made by the respondent to secure copies of the
documents, which was sought to be relied upon, to prove the
charges. These were denied by the department in flagrant
disregard of the mandate of Rule 7 sub rule 5. Therefore the
inquiry proceedings are clearly vitiated having been held in
breach of the mandatory sub rule (5) of Rule 7 of the 1999
Rules.
25. The first inquiry report is vitiated also on the ground
that the inquiry officers failed to fix any date for the
appearance of the respondent to answer the charges. Rule
7(x) clearly provides as under:
"(x) Where the charged Government
servant does not appear on the date fixed in the
inquiry or at any stage of the proceeding inspite
of the service of the notice on him or having
knowledge of the date, the Inquiry Officer shall
proceed with the inquiry ex parte. In such a
case the Inquiry Officer shall record the
statement of witnesses mentioned in the charge-
sheet in absence of the charged Government
servant."
26. A bare perusal of the aforesaid sub-Rule shows that
when the respondent had failed to submit the explanation to
the charge sheet it was incumbent upon the inquiry officer to
18
fix a date for his appearance in the inquiry. It is only in a
case when the Government servant despite notice of the date
fixed failed to appear that the enquiry officer can proceed
with the inquiry ex parte. Even in such circumstances it is
incumbent on the enquiry officer to record the statement of
witnesses mentioned in the charge sheet. Since the
Government servant is absent, he would clearly lose the
benefit of cross examination of the witnesses. But
nonetheless in order to establish the charges the department
is required to produce the necessary evidence before the
enquiry officer. This is so as to avoid the charge that the
enquiry officer has acted as a prosecutor as well as a judge.
Enquiry officer acting in a quasi judicial authority is in the
position of an independent adjudicator. He is not supposed
to be a representative of the department/disciplinary
authority/Government. His function is to examine the
evidence presented by the department, even in the absence
of the delinquent official to see as to whether the unrebutted
evidence is sufficient to hold that the charges are proved. In
the present case the aforesaid procedure has not been
observed. Since no oral evidence has been examined the
documents have not been proved, and could not have been
19
taken into consideration to conclude that the charges have
been proved against the respondents.
27. Apart from the above by virtue of Article 311(2) of the
Constitution of India the departmental inquiry had to be
conducted in accordance with rules of natural justice. It is a
basic requirement of rules of natural justice that an
employee be given a reasonable opportunity of being heard
in any proceeding which may culminate in a punishment
being imposed on the employee.
28. When a department enquiry is conducted against the
Government servant it cannot be treated as a casual
exercise. The enquiry proceedings also cannot be conducted
with a closed mind. The enquiry officer has to be wholly
unbiased. The rules of natural justice are required to be
observed to ensure not only that justice is done but is
manifestly seen to be done. The object of rules of natural
justice is to ensure that a government servant is treated
fairly in proceedings which may culminate in imposition of
punishment including dismissal/removal from service. In
the case of Shaughnessy v. United States, 345 US 206 (1953)
(Jackson J), a judge of the United States Supreme Court has
said "procedural fairness and regularity are of the
20
indispensable essence of liberty. Severe substantive laws
can be endured if they are fairly and impartially applied."
29. The affect of non disclosure of relevant documents has
been stated in Judicial Review of Administrative Action by De
Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:
"If relevant evidential material is not
disclosed at all to a party who is potentially
prejudiced by it, there is prima facie unfairness,
irrespective of whether the material in question
arose before, during or after the hearing. This
proposition can be illustrated by a large number
of modern cases involving the use of undisclosed
reports by administrative tribunals and other
adjudicating bodies. If the deciding body is or
has the trappings of a judicial tribunal and
receives or appears to receive evidence ex parte
which is not fully disclosed, or holds ex parte
inspections during the course or after the
conclusion of the hearing, the case for setting
the decision aside is obviously very strong; the
maxim that justice must be seen to be done can
readily be invoked."
30. In our opinion the aforesaid maxim is fully applicable
in the facts and circumstances of this case.
31. As noticed earlier in the present case not only the
respondent has been denied access to documents sought to
be relied upon against him, but he has been condemned
unheard as the enquiry officer failed to fix any date for
conduct of the enquiry. In other words, not a single witness
has been examined in support of the charges levelled against
21
the respondent. The High Court, therefore, has rightly
observed that the entire proceedings are vitiated having been
conducted in complete violation of principles natural justice
and total disregard of fair play. The respondent never had
any opportunity at any stage of the proceedings to offer an
explanation against the allegations made in the charge
sheet.
32. This Court in the case of Kashinath Dikshita vs. Union
of India, (1986) 3 SCC page 229, had clearly stated the
rationale for the rule requiring supply of copies of the
documents, sought to be relied upon by the authorities to
prove the charges levelled against a Government servant. In
that case the enquiry proceedings had been challenged on
the ground that non supply of the statements of the
witnesses and copies of the documents had resulted in the
breach of rules of natural justice. The appellant therein had
requested for supply of the copies of the documents as well
as the statements of the witnesses at a preliminary enquiry.
The request made by the appellant was in terms turned
down by the disciplinary authority. In considering the
importance of access to documents in statements of
witnesses to meet the charges in an effective manner this
Court observed as follows:
22
"When a government servant is facing a
disciplinary proceeding, he is entitled to be
afforded a reasonable opportunity to meet the
charges against him in an effective manner. And
no one facing a departmental enquiry can
effectively meet the charges unless the copies of
the relevant statements and documents to be
used against him are made available to him. In
the absence of such copies, how can the
concerned employee prepare his defence, cross-
examine the witnesses, and point out the
inconsistencies with a view to show that the
allegations are incredible? It is difficult to
comprehend why the disciplinary authority
assumed an intransigent posture and refused to
furnish the copies notwithstanding the specific
request made by the appellant in this behalf.
Perhaps the disciplinary authority made it a
prestige issue. If only the disciplinary authority
had asked itself the question: "What is the harm
in making available the material?" and weighed
the pros and cons, the disciplinary authority
could not reasonably have adopted such a rigid
and adamant attitude. On the one hand there was
the risk of the time and effort invested in the
departmental enquiry being wasted if the courts
came to the conclusion that failure to supply
these materials would be tantamount to denial of
reasonable opportunity to the appellant to defend
himself. On the other hand by making available
the copies of the documents and statements the
disciplinary authority was not running any risk.
There was nothing confidential or privileged in it."
33. On an examination of the facts in that case, the
submission on the behalf of the authority that no prejudice
had been caused to the appellant, was rejected, with the
following observations:
"Be that as it may, even without going into minute
details it is evident that the appellant was entitled
to have an access to the documents and statements
23
throughout the course of the inquiry. He would
have needed these documents and statements in
order to cross-examine the 38 witnesses who were
produced at the inquiry to establish the charges
against him. So also at the time of arguments, he
would have needed the copies of the documents. So
also he would have needed the copies of the
documents to enable him to effectively cross-
examine the witnesses with reference to the
contents of the documents. It is obvious that he
could not have done so if copies had not been made
available to him. Taking an overall view of the
matter we have no doubt in our mind that the
appellant has been denied a reasonable opportunity
of exonerating himself."
34. We are of the considered opinion that the aforesaid
observations are fully applicable in the facts and
circumstances of this case. Non-disclosure of documents
having a potential to cause prejudice to a government
servant in the enquiry proceedings would clearly be denial of
a reasonable opportunity to submit a plausible and effective
rebuttal to the charges being enquired into against the
government servant.
35. The aforesaid proposition of law has been reiterated in
the case of Trilok Nath vs. Union of India 1967 SLR 759 (SC)
wherein it was held that non-supply of the documents
amounted to denial of reasonable opportunity. It was held as
follows:
"Had he decided to do so, the document would
have been useful to the appellant for cross-
examining the witnesses who deposed against
24
him. Again had the copies of the documents been
furnished to the appellant he might, after
perusing them, have exercised his right under the
rule and asked for an oral inquiry to be held.
Therefore, in our view the failure of the Inquiry
Officer to furnish the appellant with copies of the
documents such as the FIR and the statements
recorded at Shidipura house and during the
investigation must be held to have caused
prejudice to the appellant in making his defence
at the inquiry."
36. The proposition of law that a government employee
facing a department enquiry is entitled to all the relevant
statement, documents and other materials to enable him to
have a reasonable opportunity to defend himself in the
department enquiry against the charges is too well
established to need any further reiteration. Nevertheless
given the facts of this case we may re-emphasise the law as
stated by this Court in the case of State of Punjab vs.
Bhagat Ram (1975) 1 SCC 155:
"The State contended that the respondent was
not entitled to get copies of statements. The
reasoning of the State was that the respondent was
given the opportunity to cross-examine the
witnesses and during the cross-examination the
respondent would have the opportunity of
confronting the witnesses with the statements. It is
contended that the synopsis was adequate to
acquaint the respondent with the gist of the
evidence.
The meaning of a reasonable opportunity of
showing cause against the action proposed to be
taken is that the government servant is afforded a
reasonable opportunity to defend himself against
the charges on which inquiry is held. The
25
government servant should be given an opportunity
to deny his guilt and establish his innocence. He
can do so when he is told what the charges against
him are. He can do so by cross-examining the
witnesses produced against him. The object of
supplying statements is that the government
servant will be able to refer to the previous
statements of the witnesses proposed to be
examined against the government servant. Unless
the statements are given to the government servant
he will not be able to have an effective and useful
cross-examination.
It is unjust and unfair to deny the government
servant copies of statements of witnesses examined
during investigation and produced at the inquiry in
support of the charges levelled against the
government servant. A synopsis does not satisfy the
requirements of giving the government servant a
reasonable opportunity of showing cause against
the action proposed to be taken."
37. We may also notice here that the counsel for the
appellant sought to argue that respondent had even failed to
give reply to the show cause notice, issued under Rule 9.
The removal order, according to him, was therefore justified.
We are unable to accept the aforesaid submission. The first
enquiry report dated 3.8.2001, is clearly vitiated, for the
reasons stated earlier. The second enquiry report can not
legally be termed as an enquiry report as it is a reiteration of
the earlier, enquiry report. Asking the respondent to give
reply to the enquiry report without supply of the documents
is to add insult to injury. In our opinion the appellants have
deliberately misconstrued the directions issued by the High
26
Court in Writ Petition 937/2003. In terms of the aforesaid
order the respondents was required to submit a reply to the
charge sheet upon supply of the necessary document by the
appellant. It is for this reason that the High Court
subsequently while passing an interim order on 7.6.2004 in
Writ Petition No. 793/2004 directed the appellant to ensure
compliance of the order passed by the Division Bench on
23.7.2003. In our opinion the actions of the enquiry officers
in preparing the reports ex-parte without supplying the
relevant documents has resulted in miscarriage of justice to
the respondent. The conclusion is irresistible that the
respondent has been denied a reasonable opportunity to
defend himself in the enquiry proceedings.
38. In our opinion, the appellants have miserably failed to
give any reasonable explanation as to why the documents
have not been supplied to the respondent. The Division
Bench of the High Court, therefore, very appropriately set
aside the order of removal.
39. Taking into consideration the facts and circumstances
of this case we have no hesitation in coming to the
conclusion that the respondent had been denied a
reasonable opportunity to defend himself the inquiry. We,
27
therefore, have no reason to interfere with the judgment of
the High Court.
40. Appeal is dismissed.
........................................J
(V.S. SIRPURKAR)
.........................................J
(SURINDER SINGH NIJJAR)
NEW DELHI,
FEBRUARY 02, 2010.
