IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.12.2010 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.NO.45667 OF 2006 R.Gangadharan ...Petitioner -vs- The Regional Joint Registrar of Co-operative Societies, Dindigul. ...Respondent Prayer:- This petition came to be numbered by transfer of O.A.No.7282 of 2000 from the file of the Tamil Nadu Administrative Tribunal praying for the issuance of a writ of Certiorari to call for the records of the respondent in R.C.1619/99/Pa.Tho dated 11.10.1999 and quash the same. For Petitioner : Mrs.N.Amuthalakshmi for Mr.Vadivelu For respondent : Mrs.Lita Srinivasan Government Advocate ORDER The petitioner challenges the proceedings dated 11 October 1999 on the file of the respondent, whereby and whereunder he was imposed with a punishment of stoppage of increment for a period of six months without cumulative effect. Background facts: 2. The petitioner was employed as Co-operative Sub Registrar. He was earlier functioning as a Special Officer of Sillukkuvarpatti Primary Agricultural Co-operative Bank. While so, the Deputy Registrar of Co-operative Societies, Dindigul issued a charge memo to the petitioner initiating action under Rule 17(b) of the Discipline and Appeal Rules. The substance of the charge was that while functioning as a Special Officer in the Sillukuvarpatti Primary Agricultural Co-operative Bank, the petitioner failed to check the registers, thereby enabling the staff to grant irregular loans to farmers. The petitioner submitted his explanation on 24 May 1999. Subsequently, an enquiry officer was appointed. The enquiry officer after conducting the enquiry submitted his report on 17 September 1999. Thereafter the petitioner was heard in person by the https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority on 4 October 1999. However, without providing a copy of the enquiry report, the respondent passed an order 11 October 1999 imposing the punishment of stoppage of increment for six months without cumulative effect. 3. Accordingly to the petitioner, copy of the enquiry report should have been given before taking a decision by the disciplinary authority. Since the same was not given, the petitioner filed original application in O.A.No.7282 of 2000 before the Tribunal. The said original application was subsequently transferred to the file of this Court, consequent to the abolition of the Tribunal and registered as W.P.No.45667 of 2006. 4. The respondent has filed a counter wherein it was stated that the punishment was imposed on a careful consideration of the enquiry report and the connected records. It was also contended that the petitioner was given a personal hearing before imposing the punishment. The respondent also submitted that the gist of the findings of the enquiry officer was furnished to the petitioner. Accordingly the respondent justified the action taken against the petitioner. Submissions: 5. The learned counsel for the petitioner contended that failure on the part of the respondent to provide a copy of the enquiry report caused serious prejudice to the petitioner and as such, the very order passed by the respondent is liable to the set aside. 6. The learned Government Pleader supported the impugned order. The issue: 6. The primary question to be decided is whether the non- supply of the enquiry report caused prejudice to the petitioner so as to give a cause of action to him to set aside the order passed by the disciplinary authority on the ground of procedural irregularity. Discussion: 7. It is true that the copy of enquiry report was not given to the petitioner. However, even as per the case pleaded by the petitioner an opportunity of hearing was given to him on 4 October 1999. There is nothing on record to show that the petitioner has made a grievance before the Disciplinary Authority that failure on the part of the authority to furnish a copy of the report, caused serious prejudice to him and as such, it was necessary to furnish a copy for an effective representation. 8. The petitioner participated in the oral enquiry and he was given an opportunity to put-forth his views in the light of the report submitted by the enquiry officer. In case, the petitioner was not aware of the contents of the enquiry report, there was no point https://hcservices.ecourts.gov.in/hcservices/ in taking part in the hearing before the disciplinary authority. The petitioner has not produced a single document to show that he has made a representation before the disciplinary authority for providing a copy of the enquiry report. The petitioner has also not filed an appeal before the statutory authority. He could have made an appeal before the statutory authority to interfere in the punishment on account of procedural illegality. 9. The other question is as to whether it is possible for this Court to interfere with the punishment without showing any kind of prejudice to the petitioner. 10. The respondent in the counter very clearly admitted that the findings of the enquiry officer was furnished subsequent to the notice issued to the petitioner calling upon him to appear for the personal hearing. The said notice was not produced by the petitioner. Therefore, unless and until the petitioner demonstrates that he was really prejudiced and a request was made to supply the enquiry report showing such prejudice, it is not possible for this Court to entertain such a plea at this point of time. The Legal Authorities :- 11.(a)The Supreme Court in Managing Director, ECIL, Hyderabad vs. B.Karunakar (1993) 4 SCC 727, formulated one basic question as to whether the report of the Inquiry Officer should be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at his own finding with regard to the guilt. The Supreme Court also framed 7 incidental questions relating to the basic question which reads thus :- (i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it? (ii)Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank? (iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? (iv) Whether the law laid down in Mohd. Ramzan Khan case will apply to all establishments — Government and non-Government, public and private sector undertakings? (v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases? https://hcservices.ecourts.gov.in/hcservices/ (vi) From what date the law requiring furnishing of the report, should come into operation? (vii) Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990? (b)The Supreme Court held that before the Disciplinary Authority comes to his own conclusion, delinquent employee should have an opportunity to reply to the Inquiry officer's findings. It was further held that the employee has a right to defend himself in the first stage of the enquiry. It was also held that the delinquent employee would be entitled to a copy of the report even if the statutory rules do not permit the furnishing of report or are silent on the subject. (c)The Supreme Court also indicated the procedure to be evolved in case the Courts and Tribunals were apprised of the fact that the Inquiry Report was not furnished to the delinquent. The method to be adopted in such cases was clearly indicated which reads as under :- 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 https://hcservices.ecourts.gov.in/hcservices/ 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 inquiry, by placing the employee under suspension and continuing the inquiry 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 inquiry 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 benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. (emphasis supplied). 12. The ratio laid down in B.Karunakar case [cited supra], was subsequently considered by the Supreme Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja,(2008) 9 SCC 31. The Supreme Court held that any failure to supply copy of the Inquiry Report would not operate as automatic cancellation of punishment. The observation reads thus :- 21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer’s report to the delinquent if such inquiry officer is other than the disciplinary authority. 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 https://hcservices.ecourts.gov.in/hcservices/ satisfy the court on that point, the order of punishment cannot automatically be set aside." 13. The question regarding the possible prejudice in case of non-supply of inquiry report was once again considered by the Supreme Court in Union of India v. Bishamber Das Dogra,(2009) 13 SCC 102 and it was held thus :- 21. 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 prejudice has been caused to him by not furnishing the enquiry report to him." 14. Therefore, the element of prejudice assumes importance in such cases. But there is nothing on record to show such prejudice. 15. For these reasons, I am of the view that there is no substance in the case pleaded by the petitioner with regard to the failure to give a copy of the enquiry report. 16. In the result, the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Tr/ To: The Regional Joint Registrar of Co-operative Societies, Dindigul. 1 cc To Mr.S.Vadivelu, Advocate, SR.85528. W.P.No.45667 of 2006 MRD(CO) RVL 15.12.2010 https://hcservices.ecourts.gov.in/hcservices/