C.W.P No. 2230 of 2009 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 2230 of 2009 Date of decision : February 17, 2009 Bimla Devi, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Girish Agnihotri, Sr. Advocate with Ms.Binayjeet Kaur, Advocate for the petitioner. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioner has challenged the punishment of reversion from the post of Sub Inspector to that of Assistant Sub Inspector primarily on the ground that after the inquiry was concluded, the inquiry report was sent to the petitioner only along with the show cause notice. Counsel for the petitioner has placed reliance on Managing Director, ECIL, Hyderabad vs B.Karunakar, 1993(5) JT 532, wherein the Hon'ble Supreme Court held as follows :- “ xx xx xx The position in law can also be looked at from a C.W.P No. 2230 of 2009 ::2:: slightly different angle. Article 311(2) says that the employee shall be given a `reasonable opportunity of being heard in respect of the charges against him'. The findings on the charges given by a third person like the Inquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that `where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed', it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the Inquiry Officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry 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. What is C.W.P No. 2230 of 2009 ::3:: dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42 nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the Inquiry Officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. (Emphasis supplied) Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry 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 levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A C.W.P No. 2230 of 2009 ::4:: denial of the Inquiry 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.” However, it is to be noticed that in the above judgment, the Hon'ble Supreme Court also held as follows :- “ (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry 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 occasions. Whether in fact, prejudice has been caused to C.W.P No. 2230 of 2009 ::5:: 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. (Emphasis supplied). Hence, in all cases where the Inquiry 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 C.W.P No. 2230 of 2009 ::6:: 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........” (Emphasis supplied). In the present case, the facts are that the petitioner was charge sheeted for having accepted illegal gratification. The statements of the complainants were most revealing because before the Inquiry Officer they stated that that they did not want to further prosecute the inquiry because the money taken from them had been returned to them. It is in this background that I asked the learned senior counsel for the petitioner as to what was the prejudice caused to the petitioner. In reply, he argued that the Inquiry Officer had not considered an affidavit of one of the witnesses dated 7.9.2006 wherein that witness had stated that although she accompanied the mother of the complainant to the house of the petitioner, yet no demand or transaction of money took place in her presence. However, I find that this witness had made the very statement before the Inquiry Officer when she appeared as PW7. In that statement also, she had made the same assertion C.W.P No. 2230 of 2009 ::7:: viz that no demand or transaction of money had taken place in her presence. Thus, the assertion that the said affidavit was not considered pales into insignificance. Another factor which is important is that the petitioner was held guilty on the basis of retracted statements of the complainants and not on the basis of the statement of PW7. With regard to that no prejudice has been alleged by learned counsel for the petitioner. Further, it must be kept in mind that the petitioner has been found guilty of accepting bribe by the Inquiry Officer, the disciplinary authority, the appellate authority as well as the revisional authority. In place of the proposed punishment of dismissal, the petitioner has been awarded the relatively minor punishment of reversion. In this view of the matter and keeping in mind the dictum of the Hon'ble Supreme Court quoted above, it cannot be held that any prejudice was caused to the petitioner by the late delivery of the inquiry report. Consequently, I dismiss this writ petition with, however, no order as to costs. ( AJAY TEWARI ) February 17, 2009. JUDGE `kk'