Union Of India & Ors vs Bishamber Das Dogra

1. This Appeal has been filed against the Judgment and Order of

the Division Bench of the Calcutta High Court dated 31st January,

2002 in FMAT No. 1370 of 1992 by which it affirmed the judgment

and order dated 16th July, 1991 of the learned Single Judge passed

in Civil Order No.3885 W of 1987 setting aside the order of

punishment of removal awarded by the Disciplinary Authority to the

respondent employee.

2. The facts and circumstances giving rise to this appeal are that

respondent joined the service as Security guard in Central 2

Industrial Security Force (CISF) in August, 1980. He remained

absent from duty without seeking permission or leave, thus, vide

order dated 12th August, 1984, he was awarded the entry of censure

for the same. Respondent was again punished for remaining

absent from duty for three days vide Order dated 22 nd July, 1985

withholding one annual increment for two years. The respondent

again absented himself from duty from 31st August, 1985 to 8th

September, 1985 i.e. for six days for which vide Order dated 5th

September, 1985, he was imposed the punishment of withholding of

one annual increment for three years. The respondent again

deserted the LINE for the period from 6.3.1986 to 16.3.1986 i.e. 10

days for which he was issued a Show Cause Notice under Rule 34

of CISF Rules on 22/24.3.1986. The said notice could not be

served upon him as the respondent again deserted the LINE for a

period of 50 days, from 21.3.1986 to 10.5.1986 and joined the

service on 11th May, 1986. Therefore, he could be served the show-

cause notice dated 22/24.3.1986 on 15th May, 1986. The

respondent submitted his reply to the show cause notice. However,

as it was not found satisfactory, a regular departmental

enquiry was initiated against him. During the 3

pendency of the enquiry, the respondent again deserted the LINE

for 11 days from 6.6.1986 to 16.6.1986. The Enquiry Officer

concluded the enquiry and submitted the report which was

accepted by the Disciplinary Authority who vide order dated

17.6.1986 imposed the punishment of removal from service. While

passing the punishment Order, the Disciplinary authority also took

into consideration the past conduct of the respondent.

3. Being aggrieved, the respondent preferred the Statutory

Appeal which was dismissed by the Appellate Authority vide order

dated 19.10.1986 observing that the respondent had not completed

six years in service but had deserted the LINE five times. Thus no

lenient view was permissible.

4. Being aggrieved, the respondent-employee preferred the

revision before the Statutory Authority. However, during the

pendency of the said revision, he filed Writ Petition No. 3885 of

1987 before the Calcutta High Court. The learned Single Judge

vide Judgment and Order dated 16.7.1991 allowed the writ petition,

quashing the order of punishment on the ground that the copy of 4

the enquiry report was not furnished and the respondent employee

was not given the opportunity to file the objections to the same.

More so, his past conduct could not have been taken into

consideration while imposing the punishment.

5. Aggrieved, the present appellants filed F.M.A.T. No. 1370 of

1992 before the Calcutta High Court which was dismissed by the

Division Bench by Judgment and Order dated 31st January, 2002.

Hence, this appeal.

6. Shri SWA Qadri, learned counsel appearing for the appellants

has submitted that the respondent employee remained absent from

duty without any justification or leave for more than five times

within a short span of less than six years in service. Even during

the pendency of the enquiry, he remained absent two times; firstly

for 50 days and secondly for 11 days. Thus, the enquiry could not

be concluded expeditiously. It is not necessary that in every case,

non furnishing the copy of the enquiry report to the delinquent

employee is always fatal. It is necessary for such employee to

establish that non-furnishing of the copy of the enquiry report has 5

caused prejudice to him. More so, the delinquent employee had

been repeatedly absenting himself without any justification time

and again. There could be no prohibition for taking into

consideration his past conduct while imposing the punishment, for

the reason, that it merely fortifies the reasons to impose the

punishment. Punishment order was passed in 1986, a period of

about 23 years has lapsed. The order of the High Court if enforced,

would be a reward for deserting the LINE time and again by a

member of the disciplined force. Therefore, the appeal deserves to

be allowed.

7. On the contrary, Shri D.K. Garg, learned counsel appearing for

the respondent employee has submitted that as there has been

violation of the principles of natural justice while holding the

enquiry, the judgments and orders passed by the High Court do not

require any interference. The past conduct of the respondent

employee could not be taken into consideration while imposing the

punishment as it becomes violative of the principles of natural

justice. Therefore, the appeal is liable to be dismissed. 6

8. We have considered the rival submission made by the learned

counsel for the parties and perused the record. In view of the

submission made by learned counsel for the parties, only two

questions arise for our consideration:

(1) Whether the delinquent employee is not supposed to establish de-facto

prejudice in case the enquiry report is not supplied to him before

awarding punishment?

(2) Whether the order of punishment would be vitiated if the Disciplinary

Authority takes into consideration the past conduct of the delinquent

employee for the purpose of punishment?

9. In fact both these issues relate to the observance of the

principles of natural justice as the delinquent employee may not

get an opportunity to make the representation against the findings

of fact recorded by the Enquiry Officer against him and also for the

proposed punishment by the disciplinary authority. Principles of

natural justice cannot be put into a strait-jacket formulate and its

observance would depend upon the fact situation of each case.

Therefore, the application of the principles of natural justice has to

be understood with reference to the relevant facts and

circumstances of a particular case.

7

10. In Chairman, Board of Mining Examination and Chief

Inspector of Mines & Anr. v. Ramjee, AIR 1977 SC 965, this

Court has observed that natural justice is not an unruly horse,

no lurking landmine, nor a judicial cure-all. If fairness is shown

by the decision-maker to the man proceeded against the form,

features and the fundamentals of such essential processual

propriety being conditioned by the facts and circumstances of each

situation, no breach of natural justice can be complained of. In Dr.

Umrao Singh Choudhary v. State of Madhya Pradesh & Anr.

(1994) 4 SCC 328, this Court held that the principles of natural

justice do not supplant the law, but supplement the law. In

Syndicate Bank & Ors. v. Venaktesh Gururao Kurati JT (2006) 2

SC 73, it was held :

"To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."

11. It is settled legal position that an order is required to be

examined on the touchstone of doctrine of prejudice. A

Constitution Bench of this Court in Managing Director, ECIL v. 8

B. Karunakar (1993) 4 SCC 727, considered the issue at length and

after taking into consideration its earlier judgment in Union of

India v. Mohd. Ramzan Khan, AIR 1991 SC 471, came to the

conclusion that furnishing the copy of the enquiry report and

consideration of the employee's reply to the same by the disciplinary

authority constitute an integral part of the enquiry. The second

stage follows the enquiry so carried out and it consists of the

issuance of the notice to show cause against the proposed penalty

and of considering the reply to the notice and deciding upon the

penalty. Thus, it is the right of the employee to get the opportunity

to make a representation against the findings in the enquiry report.

However, the Court further held that 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. The Court further observed as under:

"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 9

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. ......... ........ ....... 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."

(Emphasis added)

12. In Haryana Financial Corporation v. Kailash Chandra Ahuja

(2008) 9 SCC 31, this Court applied the law laid down in B.

Karunakar case (supra) and observed as under:

"It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." (Emphasis added).

13. In State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364,

this Court emphasized on the application of doctrine of prejudice

and held that unless it is established that non-furnishing the copy 10

of the enquiry report to the delinquent employee has caused

prejudice to him, the Court shall not interfere with the order of

punishment for the reason that in such an eventuality setting aside

the order may not be in the interest of justice rather it may be

tantamount to negation thereof. This court held as under:-

"Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise." (Emphasis added).

14. Similar view had been reiterated in S.K. Singh v. Central

Bank of India & Ors. (1996) 6 SCC 415, State of U.P. v. Harendra

Arora & Anr., AIR 2001 SC 2315.

15. In Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7

SCC 529, this Court considered the judgment in M.C. Mehta v.

Union of India & Ors. (1999) 6 SCC 237 wherein it has been held

that an order passed in violation of natural justice need not be set

aside in exercise of the writ jurisdiction unless it is shown that non- 11

observance has caused prejudice to the person concerned for the

reason that quashing the order may revive another order which

itself is illegal or unjustified. This Court also considered the

judgment in S.L. Kapoor v. Jagmohan AIR 1981 SC 136, wherein it

has been held that in a peculiar circumstance observance of the

principles of natural justice may merely be an empty formality as if

no other conclusion may be possible on admitted or indisputable

facts. In such a fact-situation, the order does not require to be

quashed if passed in violation of natural justice. The Court came to

the conclusion that a person complaining non-observance of the

principles of natural justice must satisfy that some real prejudice

has been caused to him for the reason that there is no such thing

as a merely technical infringement of natural justice.

16. Thus, in view of the above, we are of the considered opinion

that in case the enquiry report had not been made available to the

delinquent employee it would not ipso facto vitiate the disciplinary

proceedings as it would depend upon the facts and circumstances

of the case and the delinquent employee has to establish that real 12

prejudice has been caused to him by not furnishing the enquiry

report to him.

17. This Court in State of Assam v. Bimal Kumar, AIR 1963 SC

1612 considered the issue as to whether while imposing the

punishment it is permissible to take into consideration the

past conduct of an employee if it is not so mentioned in the

second show cause notice. The Court observed that while

issuing second show cause notice, the disciplinary authority

naturally has to come to a tentative or provisional conclusion

about the guilt of the charged employee as well as about the

punishment which would meet the requirement of justice in

his case, and it is only after reaching conclusions in both

these matters provisionally that the disciplinary authority

issues the second notice. The delinquent employee is entitled

to show cause not only against the action proposed to be

taken against him but also against the validity or correctness

of the findings recorded by the Enquiry Officer and

provisionally accepted by the disciplinary authority. Thus, it

enables the delinquent to cover the whole ground and to 13

plead that no case had been made out against him for taking

any disciplinary action and then to urge that if he fails in

substantiating his innocence, the action proposed to be

taken against him is either unduly severe or not called for.

18. In State of Mysore v. Manche Gowda, AIR 1964 SC 506, this

Court held that the disciplinary authority should inform the

delinquent employee that it is likely to take into consideration the

past conduct of the employee while imposing the punishment

unless the proved charge against the delinquent is so grave that it

may independently warrant the proposed punishment. Though his

previous record may not be subject matter of the charge at the first

instance.

19. In India Marine Service (P) Ltd. v. Their Workmen, (1963) 3

SCR 575, this Court while considering the similar issue held as

under :

"It is true that the last sentence suggests that the past record of Bose has also been taken into consideration. But it does not follow from this that that was the effective reason for dismissing him. The Managing Director having arrived at the conclusion that Bose's services must be terminated in the interest of discipline, he added one sentence to give additional weight to the decision already arrived at. Upon this view, it 14

would follow that the Tribunal was not competent to go behind the finding of the Managing Director and consider for itself the evidence adduced before him. The order of the Tribunal quashing the dismissal of Bose and directing his re-instatement is, therefore, set aside as being contrary to law." (Emphasis added)

20. Similarly in Director General, RPF v. Ch. Sai Babu, (2003) 4

SCC 331, this Court held as under:

"Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works." (Emphasis added)

21. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005)

2 SCC 489, this Court reiterated the similar view observing as

under :

"In the facts and circumstances of the case and having regard to the past conduct of the respondent as also his conduct during the domestic enquiry proceedings, we cannot say that the quantum of punishment imposed upon the respondent was wholly disproportionate to his act of misconduct or otherwise arbitrary." (Emphasis added)

22. In Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 SCC 656,

this Court rejected the contention that unless the past 15

conduct is a part of charge-sheet, it cannot be taken into

consideration while imposing the punishment observing that

"there can be no hard and fast rule that merely because the

earlier misconduct has not been mentioned in the charge

sheet it cannot be taken into consideration by the punishing

authority. Consideration of the earlier misconduct is often

necessary only to reinforce the opinion of the said authority."

23. In fact in this case the argument had been advanced that if

the disciplinary authority wanted to consider the past service record

of the employee, it should be a part of charge-sheet. Though in K.

Manche Gowda (supra), this Court said that it should be so

indicated in the second show cause notice only for the purpose of

imposing punishment. Thus it is not necessary that it should be a

part of the charge sheet.

24. In Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR 1998 SC

948, this Court considered the statutory rules which itself provided

as what can be taken into consideration while imposing the 16

punishment and it also referred to the consideration of the past

record of the employee.

25. In view of the above, it is evident that it is desirable that

delinquent employee may be informed by the disciplinary authority

that his past conduct would be taken into consideration while

imposing the punishment. But in case of misconduct of grave

nature or indiscipline, even in absence of statutory rules, the

authority may take into consideration the indisputable past

conduct/service record of the employee for adding the weight to the

decision of imposing the punishment if the facts of the case so

require.

26. It is settled legal preposition that habitual absenteeism means

gross violation of discipline [vide Burn & Co. Ltd. v. Wormess, AIR

1959 SC 529; and L&T Komatsu Ltd. v. N. Udayakumar, (2008) 1

SCC 224)].

27. The instant case is required to be examined in the light of

aforesaid settled legal prepositions. Admittedly, the respondent 17

employee has not completed the service of six years and had been

imposed punishment three times for remaining absent from duty.

On the fourth occasion when he remained absent for 10 days

without leave, the disciplinary proceedings were initiated against

him.

28. The show cause notice could not be served upon him for the

reason that he again deserted the LINE and returned back after 50

days. Therefore the disciplinary proceedings could not be concluded

expeditiously. The respondent submitted the reply to the show

cause notice and the material on record reveal that during the

pendency of the enquiry he further deserted the LINE for 10 days.

There is nothing on record to show any explanation for such

repeated misconduct or absenteeism. The Court/Tribunal must

keep in mind that such indiscipline is intolerable so far as the

disciplined force is concerned. The respondent was a guard in

CISF. No attempt had ever been made at any stage by the

respondent-employee to explain as to what prejudice has been

caused to him by non-furnishing of the enquiry report. Nor he ever

submitted that such a course has resulted in failure of justice. 18

More so, the respondent employee had never denied at any stage

that he had not been punished three times before initiation of the

disciplinary proceedings and deserted the LINE twice even after

issuance of the show cause notice in the instant case. No

explanation could be furnished by the respondent-employee as

under what circumstances he has not even consider it proper to

submit the application for leave. Rather, the respondent thought

that he had a right to desert the LINE at his sweet will. It was a

case of gross violation of discipline. Appeal filed by the respondent

employee was decided by the Statutory Appellate Authority giving

cogent reasons. The facts of the case did not present special

features warranting any interference by the Court in limited

exercise of its powers of judicial review. In such a fact situation, we

are of the view that the High Court should not have interfered with

the punishment order passed by the disciplinary authority on such

technicalities.

29. In view of the above, the appeal succeeds and is allowed. The

impugned judgment and order of the Division Bench of the High

Court dated 31.1.2002 in FMAT No.1370 of 1992 and judgment and 19

order dated 16.7.1991 of the learned Single Judge passed in Civil

Order No.3885 W of 1987 are hereby set aside and the order of

punishment imposed by the statutory authority is hereby restored.

No costs.

...........................................J. (Dr. Mukundakam Sharma)

...........................................J. (Dr. B.S. Chauhan) New Delhi;

26th May, 2009.

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Digital Proforma

1. Case No. : Civil Appeal No. 7087 of 2002

2. Date of decision : 26.5.2009

3. Cause Title : Union of India & Ors.

vs. Bishamber Das Dogra

4. Coram : Hon'ble Dr. Justice Mukundakam Sharma Hon'ble Dr. Justice B.S. Chauhan

5. Date of C.A.V. : 18.5.2009

6. Judgment delivered : Hon'ble Dr. Justice B.S. Chauhan by

7. Nature of Judgment : Reportable whether reportable