IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2835 of 2009 Ravindra Kumar . Versus The State Of Bihar & Ors . ----------- For the Petitioner:- Mr. Bindhyachal Singh, Adv. Mr. Satya Prakash, Adv. For the State:- Mr. Sunil Kr. Ravi, Adv. -------------- 3. 14.07.2011 Heard learned counsel for the petitioner and the State. The petitioner, a Sub Inspector of Police, is aggrieved by the order of punishment dated 3.8.2007 withholding two annual increments with cumulative effect and that nothing beyond subsistence allowance was payable for the period of suspension, as modified on 1.9.2008. The appeal against the same has also been dismissed on 18.9.2008. Counsel for the petitioner contended that no second show cause notice for the proposed punishment along with a copy of the enquiry report was given to the petitioner. Relying on (1993)4 SCC 727 (Managing Director, ECIL, Hydrabad & Ors. Vs. B. Karunakar & Ors.), it was contended that the order of punishment stood vitiated. Prejudice to the delinquent was implicit. He was denied the opportunity to persuade the disciplinary authority that the punishment imposed may have required reconsideration or that the findings were not commensurate with the evidence. It was urged that 2 if the enquiry officer merely forms an opinion and submits the same to the disciplinary authority which the latter accepts without giving an opportunity to the delinquent, nothing more is required to demonstrate prejudice as the delinquent does not even have the benefit of the reasons for the opinion of the enquiry officer. Distinguishing (2005)7 SCC 597 (National Fertilizers Ltd. v. P.K. Khanna), it was urged that the observations made therein with regard to non furnishing of the enquiry report not causing prejudice were in context of the rules that fell for consideration. Relying on (2008)8 SCC 236 (State of Uttaranchal v. Kharak Singh) it was urged that it had been held at Paragraph- 15 of the judgment that a copy of the enquiry report along with all materials on which the enquiry officer may rely have to be furnished before proceeding further by the disciplinary authority. Assailing the withholding of salary for the period of suspension without a show cause notice reliance was placed on 2006(4) PLJR 514 (DB) (Dinesh Prasad Vs. State of Bihar) to submit that in absence of a second show cause notice under Rule 97(3) of the Bihar Service Code that part of the punishment was also not sustainable. Counsel for the State relying on the case of 3 P.K. Khanna (supra) submitted that the present was a clear case where no prejudice has been caused to the petitioner by failure to supply the enquiry report and therefore the order of punishment required no interference. The petitioner was placed under suspension on 25.7.2006 in context of an address verification report for issuance of a passport. On 11.11.2006 four charges were drawn up against him. The documents in support of the charges were enclosed to the memo of charges. The petitioner demanded the 12th page of charge no. 3, as also legible copies of other documents before he could file his reply. No reply was ultimately filed by the petitioner. The respondents in their counter affidavit state that the 12th page was a yellow page meant only for official use and did not form part of the material exhibits in the departmental proceeding. They further state that clear legible photo copies of the other exhibits to the memo of charge were duly furnished to the petitioner. There is no denial of these two averments of fact by the petitioner. The petitioner undisputedly participated in the departmental proceedings and cross examined witnesses also. During the departmental proceedings he asked for 4 certain additional documents, which he alleges in the writ petition were not supplied to him. The counter affidavit states that the petitioner had made demands for certain additional documents on 19.1.2007. The enquiry officer by a reasoned order dated 7.2.2007 opined that they were not relevant for the purposes of enquiry and thus there was no need to furnish it to him. The appeal preferred by the petitioner has been brought on record today by a supplementary affidavit. The Court has gone through the memo of appeal. The grounds taken are substantive. The challenge is on merits with regard to what had transpired during the departmental enquiry, the nature of evidence that had been placed and considered by the enquiry officer. No ground has been urged of any prejudice being caused to the petitioner by reason of non supply of the enquiry report or notice for the proposed punishment. No other procedural irregularity has been urged. In the case of B. Karunakar (supra) it has been held at Paragraph-29 as follows:- “29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges 5 levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” The aforesaid Paragraph has to be read in conjunction with Paragraph 30(v) which read as follows:- “30 (v) ….......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.” The caution to be exercised by the Courts has been explained at Paragraph 31 of judgment was as follows:- “31.………….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 6 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…………..” The seed of the no prejudice theory is therefore to be found in the judgment B. Karunakar (supra) itself. In (2008) 9 SCC 31 (Haryana Financial Corporation & Ors. Vs. Kalashchand Ahuja) considering the no prejudice theory in view of the failure to furnish a copy of the enquiry report it was observed at Paragraphs-21 to 24, and 44 as follows:- “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 satisfy the court on that point, the order of 7 punishment cannot automatically be set aside. 22. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the inquiry officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply the inquiry officer's report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the inquiry officer's report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed. 23. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was “no whisper” in the writ petition showing any prejudice to the delinquent as required by B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is “writ large”. 24. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated: “30. (v) … 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.” 44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being 8 declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” The issue was again considered in (2009) 13 SCC 102 (Union of India & Ors. Vs. Bishamber Das Dogra) when the Court framed the Question at Paragraph 9(i) as follows:- “9. We have considered the rival submissions made by the learned counsel for the parties and perused the record. In view of the submissions 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?” The finding at Paragraph 21 opined that:- “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.” 9 In the case of P.K. Khanna (supra), it was held at Paragraph-12 as follows:- “12. As far as the second question is concerned, neither the decision in Karunakar nor Rule 33 quoted earlier postulate that the delinquent employee should be given an opportunity to show cause after the finding of guilt as to the quantum of the punishment. The Rules envisage the passing of an order by the disciplinary authority not only finding the delinquent guilty, but also imposing punishment after the delinquent has been given a copy of the enquiry report and had an opportunity of challenging the same.” In the case of Kharak Singh (supra) the facts of the case were entirely different and therefore the general observation made therein with regard to the need for service of a copy of the enquiry report has no application to the facts of the present case. The Court therefore holds that no prejudice has been caused to the petitioner by not furnishing him a copy of the enquiry report with the proposed punishment so as to enable the Court to hold that the order of punishment was vitiated. To that extent, the Court finds no merit in this writ application and dismisses the same. On the second question with regard to the salary for the period of suspension in absence of a second show cause notice issued under Rule 97(3) of the Bihar Service Code, it has been held in Dinesh Prasad 10 (supra) as follows at Paragraph-5. “5. Apart from these questions, so far the main question for which this matter has been referred, is concerned it appears that for imposing the punishment no. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence allowance, the disciplinary authority was required to give separate show cause notice to the delinquent in terms of Rule 97(3) of the Code. This part of the order, therefore, is not permissible in absence of any such notice to the delinquent employee” The order of punishment to that extent as modified on 1.9.2008 is not sustainable and is accordingly set aside but without prejudice to the rights of the respondents to proceed afresh in accordance with law. The writ application is allowed but only to the extent indicated. P. Kumar (Navin Sinha, J.)