Civil Writ Petition No. 8253 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8253 of 2009 Date of decision: 12.10.2009 Pawan Kumar ...petitioner Versus District and Sessions Judge, Fatehabad and another ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH ***** Present: Mr. Rajesh Hooda, Advocate for the petitioner. Mr. Raman Mahajan, Advocate for the respondents. RANJIT SINGH J. The petitioner, who was working as Peon at District Court, Hisar stands dismissed from service on 10.9.2008. The petitioner was charged for being absent on various occasions, while he was working as Orderly/Usher in the Court of Additional District and Sessions Judge, Fatehabad. During the period of 8 months, the petitioner had remained absent for 31 days. Finding this to be a habit on his part, the petitioner was served charged sheet (Annexure P-1) on 26.11.2005. Thereafter, an inquiry Officer was detailed. The petitioner was found guilty of the charge alleged against him. Thereupon, the petitioner was served a show cause notice. Alongwith show cause notice he was provided with a copy of the inquiry report. In the show cause notice, the punishment of dismissal was proposed to the petitioner. The petitioner submitted his reply and ultimately the order dismissing the petitioner from Civil Writ Petition No. 8253 of 2009 2 service was passed on 10.9.2008. The petitioner filed an appeal against this order, which has been dismissed on 12.1.2009 and he has now impugned the order of punishment as well as the order dismissing the appeal through the present writ petition. The petitioner has basically made a grievance that the inquiry report was provided to him alongwith show cause notice whereas this was required to be served on him earlier and before serving show cause notice. From this, the counsel would urge that the opinion has already been formed to dismiss the petitioner from service, which will be in violation of provisions of law. In support, the petitioner has referred to the case of Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 Supreme Court Cases 727. Reference is made to paragraphs 26, 27 and 29 of the judgment to urge that the inquiry report was required to be supplied to the petitioner prior to forming an opinion. No doubt in ECIL case (supra), it is held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry report before disciplinary authority arrives at its conclusion with regard to guilt or innocence of the employee with regard to the charges levelled against him. That right has been held to be a part of the employee's right to defend himself against the charges levelled against him. This denial has also been held to be leading to denial of reasonable opportunity to the employees to prove his innocence and grant of principle of natural justice. This view is based on the fact that an employee has first right to prove innocence and second right is to either plead for penalty or lesser penalty although conclusion Civil Writ Petition No. 8253 of 2009 3 regarding guilt is accepted. View is that the finding recorded by enquiry officer forms an important material before disciplinary authority which along with evidence is taken into consideration by it to come to its conclusion. That being the position in law, it is now to be seen as to what would be the effect of non supply of enquiry report before proposing punishment. In fact ECIL case (supra) was a case where enquiry report was not supplied. This question was specifically addressed and answered by the Supreme Court in ECIL case supra. The question is so noted and answered: “ 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 inquiry 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 Civil Writ Petition No. 8253 of 2009 4 occasions. Whether in fact, prejudice has been caused to the employees 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 employees 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.” The court even has suggested a way out in all such cases as under:- “ 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 come 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 Civil Writ Petition No. 8253 of 2009 5 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 inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.” It is thus seen that even the non supply of the enquiry report in itself is no ground to set aside the punishment. In the present case, the enquiry report has been supplied but only with the proposed punishment. In this context, the petitioner was asked to explain the prejudice which may have resulted on account of non supply of the enquiry report for him to challenge the finding. The Civil Writ Petition No. 8253 of 2009 6 counsel could not show any such prejudice. It is not even the case of the petitioner that he was deprived to challenge the finding returned by the enquiry officer. Even if the report had not been supplied, the proceedings could have continued after supplying the report. No material different consequences would have followed if the enquiry report had earlier been supplied to the petitioner to challenge the finding returned by the enquiry officer. There would thus be no need to stretch the concept of justice to illogical limits and to unnaturally expand the principle of natural justice. The second submission made by the counsel for the petitioner is that appellate authority has noticed facts, which are factually inaccurate. In this regard, he would refer to the period of absence mentioned in the appellate order, which was not even contained in the charge sheet. The perusal of the order passed by the appellate authority would indicate that reference is made to earlier absence on the part of the petitioner for which he was punished. This perhaps was not referred to justify the proposed punishment awarded to him but was only taken note of just for the purpose of passing the order. The appellant authority has applied his mind to the proven charges and has not taken into consideration anything, which was not on record. Faced with this situation, counsel for the petitioner says that the punishment of dismissal awarded to the petitioner is operating harshly and is disproportionate to the gratuity of the allegation made. No such plea is found to have been raised before appellate authority as no such plea is recorded in the order passed by the appellate authority. The petitioner says that he did raise this Civil Writ Petition No. 8253 of 2009 7 plea but it is not noted and dealt with. In case, any such plea which was raised and not dealt, the appropriate remedy for the petitioner was to move the same authority by way of any application for consideration/reconsideration. Once the point was not raised before the appellate authority, it would not be appropriate to allow this plea to be raised for the first time before the writ Court. Counsel for the petitioner at this stage prays for permission to file an application before the appellate authority for consideration of this plea. The petitioner, if so advised, may move an appropriate application, and it would be entirely in the discretion of the appellate authority to either entertain such application or to decline the prayer to raise the same. The writ petition, however, is dismissed. October 12, 2009 ( RANJIT SINGH ) rts JUDGE