PETITIONER: STATE BANK OF PATIALA & ORS Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 27/03/1996 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, <NAME>, K.S.(J) CITATION: 1996 AIR 1669 1996 SCC (3) 364 JT 1996 (3) 722 1996 SCALE (3)202 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T B.P JEEVAN REDDY,J Leave granted. Heard counsel for the parties. This appeal preferred against the judgment and decree of <ORG> dismissing the second appeal filed by the appellant raises certain basic questions concerning natural Justice in the context of disciplinary proceedings.

A disciplinary enquiry was held against the respondent in respect of two charges. They are:

"Charge No.1 'That he did not deposit the sum of Rs.10,000/- handed over to him by <NAME> in December 1985, in the crop loan account of Sh. <NAME> S/o <NAME>. Later on the entire amount of Rs.11,517=50 outstanding in the account was deposited by someone on the 22nd March 1986 under the signature of ah <NAME>. He thus utilised the amount of Rs.10,000/- for approximately 3 months for his own advantage.' Charge No.II 'That hes in contravention of Regulation 50(4) of the State <ORG> of Patiala (Officers') Service Regulations 1979, issued an undated letter in, his own handwriting addressed to the Tehsildars Bhatinda for revocation of Mutation on the land mortgaged to the <ORG> even when the crop loan account of Shri <NAME> was not adjusted. He thus jeopardized the interests of the <ORG>'."

At the relevant time, the respondent was working as the Manager of Kot Fatta branch Of the appellant-<ORG>. The charge against the respondent, in short. is one of temporary misappropriation. One <NAME> had taken a loan of Rupees ten thousand from the <ORG>. After <NAME>'s death, his son, <NAME>, came and handed over a sum of Rupees ten thousand to the respondent in Decembers 1985 in discharge of the said loan. In February, 1986, the respondent was transferred to another branch. In March, <NAME> went to the <ORG> and discovered that the amount paid by him to the respondent was not credited to his/his father's account. Soon thereafter, a sum of Rs.11,517.50p was deposited in the <ORG> in the name of <NAME>. The appellant <ORG>'s case is that having received the amount from <NAME> in December, 1985, the respondent did not credit the said amount into the <ORG> account until March, 1986, though he issued a letter addressed to <ORG> in December, 1985 itself to the effect that since the crop loan amount has been adjusted, the entry regarding mortgage of land of <NAME> in favour of the <ORG> be revoked.

Before ordering a regular oral enquiry, the <ORG> had directed <NAME> and <NAME> to conduct a preliminary enquiry. The said officers examined witnesses including <NAME> and the Patwari of the village, <NAME>, and also gathered necessary documentary evidence. It is on the basis of the material so gathered and the preliminary report they submitted that the regular oral enquiry was ordered. In the enquiry, six witnesses (PWs.1 to

6) were examined on behalf of the <ORG> and three witnesses (DWs.1 to 3) on behalf of the respondent. The <ORG> examined Sri <NAME> and Sri <NAME> who had conducted the preliminary enquiry and recorded the statements of <NAME> among others. The <NAME>, <NAME>, was examined as PW-5. The other three witnesses, PWs.3, 4 and 6 are the employees of the <ORG> who spoke to the various aspects of the <ORG>'s case. <NAME> who was the complainant did not appear as a witness at the regular enquiry inspite of several attempts made to procure his presence, though his statement had been recorded during the preliminary enquiry.

At the conclusion of the enquiry, a report was submitted by the enquiry officer holding both the charges established. The competent authority accepted the report and ordered the removal of the respondent from the service. An appeal and a review submitted by the respondent were dismissed. The respondent thereupon instituted a suit in the court of learned Sub-Judge, IInd Class, <NAME> for a declaration that the order of removal is void and illegal and for a declaration that he continues to be in service with all consequential benefits. <ORG> rejected all the grounds urged by the respondent in support of his case except one, viz., that "the list of witnesses and list of documents were not supplied along with charge-sheet and then the same were not supplied by the presenting officer during the course of enquiry". On the only ground that "this argument of the learned, counsel for the plaintiff was not meted out by the learned counsel for the defendants in, his written arguments", <ORG> held the allegation established. It found that the said failure to supply is violative of Regulation 68(X)(b)(iii) of the State <ORG> of Patiala (Officers') Service Regulations, 1979 and on that basis, decreed the suit. On appeal, the judgment and the decree of <ORG> was affirmed. <ORG> found the following facts: during the course of enquiry, the presenting officer filed a provisional list of documents/ witnesses (P-2) on June 2,1987. The list contained nine documents including the statements of <NAME>, <NAME>, and <NAME>, complainant. The said documents were marked as P-3 to P-11. Though a copy of the list of documents/statements was supplied to the respondent- plaintiff, copies of the documents P-3 to P-11 were not supplied to him. He was however, advised , examine and take notes of the said documents/ statements. This opportunity was given only half an hour before the commencement of the enquiry proceedings. <ORG> found that in the above circumstances, there was a clear violation of Regulation 68 which has prejudicially affected the respondent's defence. The second appeal filed by the <ORG> was dismissed by a learned single Judge of <ORG> affirming the said finding. The learned Judge in fact assigned one more ground in support of the respondent's case, viz., that inasmuch as <NAME> was not examined, it is a case of no evidence'. Before entering upon the discussion of issues arising herein, it is well to reiterate the well-accepted proposition that the scope of judicial review in these matters is the same whether it is a writ petition filed under Article 226 of the Constitution of India or a suit filed in the civil court.

To clear the ground for considering the main question arising herein, we may first dispose of the additional ground assigned by <ORG>. Because <NAME>, the complainant, was not examined, it cannot to be a case of no evidence. As stated above, as many as six witnesses were examined including two officers of the <ORG> who conducted the preliminary enquiry and had recorded the statements of witnesses including <NAME>. They spoke to the preliminary enquiry conducted by them and the Statement of <NAME> recorded by them. Other <ORG> officials were examined to establish that the letter Exh.P-6 addressed to the Tehsildar, <NAME> was in fact written by and bears the signature of the respondent. <NAME>, Patwari, was also examined. It is on the basis of this evidence that the enquiry officer had come to the conclusion that both the charges were established inspite of non-examination of <NAME>. Neither <ORG> nor the first <ORG> have found that it is a case of no evidence. The additional ground assigned by <ORG> is, therefore, unsustainable in law.

Now, coming to the main ground upon which the plaintiff's case has been decreed, viz., the nonfurnishing of the copies of the statements of witnesses and documents, the factual position as found by <ORG> is to the following effect: though a list of documents/witnesses was furnished to the respondent before the commencement of the enquiry, the copies of the documents and statements recorded during the preliminary enquiry were not supplied to the respondent. Half an hour before the commencement of the enquiry proceedings, the respondent was advised to peruse the said documents and the statements of witnesses which he did. <NAME> was not examined at the regular enquiry. The other witness who was examined during the preliminary enquiry, <NAME>, Patwari, was examined at the regular enquiry. The question is whether on the above facts, it can be held that there is a violation of Regulation 68 and whether the violation, if any, vitiates the enquiry. Regulation 68 insofar as is relevant, reads thus:

"(a) The inquiring authority shall where the officer does not admit all or any of the articles of charge furnish to such officer a list of documents by which and a list of witnesses by whom, the articles

(b) The inquiring authority shall also record an order that the officer may for the purpose of preparing his defence:

i)Inspect and take notes of the document listed within five days of the order or within such further time not exceeding five days as the inquiring authority may allow:

ii) submit a list of documents and witnesses that he wants for enquiry.

iii) be supplied with copies of statements of witnesses, if any, recorded earlier and <ORG> shall furnish such copies not later than three days before the commencement of the examination of the witnesses by <ORG>.

(Emphasis added)

iv) gave a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery of production of the documents referred to at (ii) above."

[Taken from the judgment of <ORG>] It is sub-clause (iii) which is said to have been violated in this case. The sub-clause provides that copies of the statements of witnesses, if any, recorded earlier shall be furnished to the delinquent officer "not later three days before the commencement of the examination of witnesses by <ORG>." From <ORG> judgment, it appears that on June 2, 1987, the respondent was given an opportunity of perusing and taking notes from the said documents and statements of witnesses and that the enquiry also commenced on that day. lt, however, appears from a copy of the enquiry report that the six witnesses for the <ORG> were examined on the following dates: S/Sri K.S.Wadhan and P.N.Garg (PWs.1 and 2) on July 6, 1987, S/Sri Mangat Rai Verma, <NAME> and <NAME> (PWs.3, 4 and 5) on July 7, 1987 and Sri <NAME> The three defence witnesses so examined on July 27, 1987. It is thus evident that though copies of the statements of <NAME> and <NAME> were not supplied to the respondents he was permitted to peruse the same more than three days prior to the examination of witnesses. It is necessary to emphasize that sub-clause -(iii) aforesaid only speaks of copies of statements of witnesses recorded earlier and does not refer to documents. So far as the documents are concerned the only right given to the delinquent officer by Regulation 68 is to inspect and take notes and that has been done. Coming back to the statements of witnesses <NAME> was not examined at the oral enquiry at all as stated above. Only <NAME>, Patwari, was examined. The issue boils down to this whether the failure to literally comply with sub-clause (iii) of clause (b) of Regulation 68(ii)(x)vitiates the enquiry altogether or whether it can be held in the circumstances that there has been a substantial compliance with the said sub-clause and that on that account, the enquiry and the punishment awarded cannot be said to have been vitiated.

Sub-clause (iii) aforesaid is indisputably part of a regulation made in exercise of statutory authority. The sub- clause incorporates a facet of the principle of natural justice. It is designed to provide an adequate opportunity to the delinquent office- to cross-examine the witnesses effectively and thereby defend himself properly. It is relevant to note in this behalf that neither the enquiry officers' report nor the judgment of <ORG>, <ORG> or <ORG> say that the respondent had protested at the relevant time that he was denied of an adequate opportunity to cross-examine the witnesses effectively or to defend himself properly on account of non- supply of the statements of witnesses. The <ORG>, on the contrary, has recorded that when he was advised to peruse, examine and take note; from the documents including the statements of witnesses [<NAME> and <NAME>], the only objection raised by the respondent was that "the documents marked Exh.P-6, P-10 and P-11 were only photostat copies and not originals and should not be considered or marked exhibits". [Exhs. P-6, P-10 and P-11 are documents other than the statements of witnesses, i.e., of <NAME> and <NAME>.] Moreover, as pointed out above, the examination of witnesses began long after the expiry of three days from the day on which the respondent was advised to and he did peruse the documents and statements of witnesses. In the circumstances, it is possible to say that there has been a substantial compliance with the aforesaid sub-clause (iii} in the facts and circumstances of this case though not a full compliance. This in turn question whether each and every violation of rules or regulations governing the enquiry automatically vitiates the enquiry and the punishment awarded or whether the test of substantial compliance can be invoked in cases of such violation and whether the issue has to be examined from the point of view of prejudice. So far as the position obtaining under the Code of Civil Procedure and Code of Criminal Procedure is concerned, there are specific provisions thereunder providing for such situation. There is Section 99 of the Code of Civil Procedure and Chapter 35. of the Code of Criminal Procedure. Section 99 C.P.C. says, "no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or nonjoinder of parties or causes of action or any error defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of <ORG>." Section 465(1) of the Criminal Procedure Code, which occurs in Chapter 35 similarly provides that "subject to the provisions hereinbefore contained no finding sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this code or any error or irregularity in any sanction for the prosecution unless in the opinion of that court a failure of justice has in fact been occasioned thereby."

It is not brought to our notice that the State Bank of Patiala (Officers') Service Regulation contains provision corresponding to Section 99 C.P.C. or Section 465 . Does it mean that any and every violation of the regulations renders the enquiry and the punishment void or whether the principle underlying Section 99 C.P.C. and Section 465 . is applicable in the case of disciplinary proceedings as well. In our opinion, the test in such cases should be one of prejudice, as would be later explained in this judgment. But this statement is subject to a rider. The regulations may contain certain substantive provisions, e.g., who is the authority competent to impose a particular punishment on a particular employee/officer. Such provisions must be strictly complied with. But there may be any number of procedural provisions which stand on a different footing. We must hasten to add that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance may not be applicable For examples take a case where a rule expressly provides that the delinquent officer/employee shall be given an opportunity to produce evidence/material in support evidence of the other side. If no such opportunity is given at all inspite of a request therefor, <ORG> will be difficu<ORG> to say that the enquiry is not vitiated. But in respect of many procedural provisions it would be possible to apply the theory of substantial compliance or the test of prejudices as the case may be. The position can be stated in the following words: Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available. (2) Even among procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available. (s) In respect of procedural provisions other than of a fundamental nature the theory of substantial compliance would be available. In complain objection on this score have to be judged on the touch-stone of prejudices as explained later in this judgment. In other words the test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. We may clarify that which provision falls in which of the aforesaid categories is a matter to he decided in each case having regard to the nature and character of the relevant provision.

It would be appropriate to pause here and clarify a doubt which one may entertain with respect to the principles aforestated. The several procedural provisions governing the disciplinary enquiries whether provided by rules made under the proviso to Article 309 of the constitutions under regulations made by statutory bodies in exercise of the power conferred by a statute or for that matter, by way of a statute] are nothing but elaboration of the principles of natural justice and their several facets. It is a case of codification of the several facets of rule of audi alteram partem or the rule against bias. One may ask, if a decision arrived at in violation of principles of natural justice is voids how come a decision arrived at in violation of rules regulations/statutory provisions incorporating the said rules can be said to be not void in certain situations. It is this doubt which needs a clarification - which in turn calls for a discussion of the question whether a decision arrived at in violation of any and every facet of principles of natural Justice is void.

The first decision on this aspect is that of <ORG> in <NAME> v. <NAME> [1964 A.C.40] and the oft- quoted words are that of Lord <NAME>, to wit "Then there was considerable argument whether in the result the watch committee's decision was void or merely voidable. Time and time again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in <NAME> v. <NAME> (1874) LR 9 Ex.190.

I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case."

It must, however, be remembered that was a case where the appellant-chief constable was dismissed without notice and without enquiry. He was tried and acquitted on a criminal charge of conspiracy to obstruct the course of justice. Two other police constables who were tried alongwith him were convicted. While acquitting the appellant, the learned Judge commented adversely at more than one place upon the leadership qualities of the chief constable suggesting that he was found wanting in that respect. Thereupon <ORG>, without giving any notice or hearing to him dismissed him from service. The violation was thus of a fundamental nature. It was a case of total violation of the principle of natural justice*. There could not be a greater violation of natural justice than that.

We may now consider the decision of <ORG> in <NAME> v. <ORG> [1968 (1) W.L.R.1278]. The facts of this case are rather involved. The Singapore Municipal Ordinance provided that in a case of misconduct which in the opinion of the head of the department merited dismissal the head of the department should outline the case to the president or the deputy president and hold an

------------------------------------------------------------ *It is in this context, it was observed that it is not open to an authority which has not given a notice or hearing to the affected person to say that even if it had given such an opportunity the affected person had nothing worthwhile to say or that the result would not have been different even if such a notice or hearing is given. Of course no definite opinion was expressed on this aspect in <NAME> v.<NAME>, as pointed out by <ORG> in Maradana Mosque Trustees v. <NAME> (1967 (1) A.C.13 at 24).

enquiry, The record of enquiry shall thereafter be considered by the president or the deputy president who was entitled to cause such further enquiry as he may think appropriate and then make his final decision. If the decision was to dismiss the employee, the decision was to be conveyed by the head of the department to the employee who was given a right of appeal to <ORG>. The appellants were daily rated unskilled labourers. On the allegation of misconducts an enquiry was held by the head of the department wherein the appellants participated, Thereafter, the deputy president asked certain questions from the head of the department and the latter supplied the necessary information. This was not disclosed to the appellants. They were dismissed. On appeals a de novo hearing was afforded to the appellants by <ORG>. Thereupon the appellants brought an action in <ORG> which ultimately reached <ORG>. he <ORG> recalled in the first instances the statement of law on this subject as stated by Lord <NAME> in <NAME> v. <NAME> to the effect that unless the conditions of service are governed by a statute or statutory rules principles of natural justice have no place in a dispute between master and servant. The statement from <NAME> runs thus:

"The law regarding master and servant is not in doubt There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none But if he does so in a manner not warranted by the contract he must pay damages for breach of contract So the question in a pure case of master and servant does not at all depend on whether the master has heard-the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them."

On the facts of the appeal before them, <ORG> held, in the first instance, that at the stage of the deputy president asking questions and the head of the department supplying him information, the principles of natural justice had no application Alternately, they held that even if the said principles did apply, even then it must be held that the said violation was cured by what happened before <ORG> [i.e., on appeal] Since there was a re-hearing before <ORG> and evidence was called de novo and also because no grievance was made with to the proceedings before <ORG>, the invalidity arising from the violation of principles of natural justice at the earlier stage was cured. This decision was referred with approval in 1980 by <ORG> in <NAME> v. <NAME>** [1980 A.C.574] in the following words:

"Their Lordships regard this as a decision that in the context, namely one of regulations concerning establishments procedures, justice can be held to be done if, after all these procedures had been gone through, the dismissed person has had a fair hearing and put his case. It is thus an authority in favouring the existence of the intermediate category, but not necessarily one in favour of a general rule that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase 'hearing of evidence de novo,' though useful in that case, does not provide a universal solvent. What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for."

(Emphasis added)

------------------------------------------------------------ **<NAME> v. <NAME> was a case where the first- contention of the plaintiff was that since the decision against him was arrived at in violation of the principle of natural justice, it was void and no appeal lay against an order which was void. "A condition precedent, it was said, of an appeal was the existence of a real, even though voidable decision". <ORG> dealt with the argument in the following words: "This argument has led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships opinion would be, if it become necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal."

<NAME> v. Secretary of <ORG> for <ORG> (1990 (1) R.C.876) was an interesting case. On the ground of overstaying in United Kingdom, the appellant was given a notice proposing to deport him. The appellant's solicitors lodged a notice of appeal and informed the appellants on his correct address, of the action taken by them. When the solicitors were notified of the date of hearing, they wrote to the appellant informing him of the date of hearing, but this letter was sent on the old address. The appellant did not receive it. The solicitors, finding no response from the appellants took no steps in the matter and the appeal was dismissed. The solicitors again wrote to the appellant but on the old address again. When sought to be deported, the appellant applied for judicial review of the deportation order on the ground of absence of notice; to him. <ORG> and <ORG> upheld his plea holding that notwithstanding absence of fault by the <ORG> there had been a breach of the principle of audi alteram partem, which constituted a fundamental flaw in the decision- making since the fault lay entirely with the appellant's solicitors there was a clear case for quashing the <ORG>'s decision. On appeal to <ORG>, the decision of <ORG> and <ORG> was reversed. <ORG> [Lord Bridge] observed: "a party to the dispute who has last the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of the procedural impropriety or that natural justice has been denied to him ......". In other words, <ORG> was of the opinion that natural justice merely imposed standards of procedural fairness on the decision-making authority and that natural justice does not demand that the person affected should actually receive a fair hearing.

We must, however, make it clear that it may be difficult to find uniformity in the large number of decided cases in United Kingdom. For example, take the decision of <ORG> in <NAME> v. <ORG> [1971 (2) All.E.R.1278]. It was a case ____________________________________________________________ ***This reminds us of what <ORG> of Canada said with respect to the meaning of the words "principles of fundamental justice". Section 7 of the Canadian Charter of Rights and Freedoms, 1982 declares "every one has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the Principles of fundamental justice" In R v. Beare [1988 (2) S.C.R.387], <ORG> of Canada while interpreting the words "principles of fundamental justice" said that it "guarantees fair procedure but does not guarantee the most favourable procedure that can possibly be imagined". Also see <NAME> v. Canada [1992 (1) <ORG> Reports

581. where the concerned statute mandated that no resolution of <ORG> far the dismissal of a certificated teacher was to be valid unless notice of the motion for dismissal was sent to the teacher not less than three weeks previous to the meeting. And, further that the resolution for the dismissal was not to be valid unless agreed to by the majority of the full members of the <ORG>. The teacher concerned, <NAME>, was informed more than three weeks in advance. But his written request for an opportunity to submit counter representations was not granted and though he was present at the decisive meeting, he was not permitted to state his case. The Court held that the statutory requirement of three weeks notice before the decision was taken, conferred an implied right to be heard. It was not done. By the notice dated March 19, 1969, the service off the teacher was terminated with effect from April 24, 1969. <ORG> held that the concerned teacher was denied by the education authority, which employed him, the hearing to which he was entitled. It was further found that the hearing to be afforded would not be a useless formality, as there was an arguable case for the teacher. Nonetheless, it was observed by Lord <NAME> [at P.1283]:

"...... it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer.

Lord Guest [at P.1291] not only agreed with the above statement but also applied the test of prejudice. He observed:

"A great many arguments might have been put forward but forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way. "

Lord <NAME> too stated the principle in the following words [at P.1294]:

"The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he was also show that if admitted to state his case he had a case of substance to make . A breach of procedure, whether failure of natural justice, administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."

<CITATION> of state for Transport, ex parte Gwent County Council [1987 (1) All.E.R.161], <ORG> too applied the test of prejudice in enhancement of toll charges over a bridge. The Act provided for a public hearing before effecting increase. Dealing with a complaint of procedural impropriety, <ORG> held that unless. prejudice is established to have resulted from the procedural impropriety, no interference was called for. In another case, <NAME> v. Secretary of <ORG> for Environment [1981 A.C.75 <ORG> held that in the absence of statutory rules as to the conduct of a local enquiry under the Highways Act s 1959 the procedure to be followed was a matter of discretion for the Secretary of <ORG> and the Inspector - the only requirement being that the procedure followed should be fair to all concerned including the general public. It is thus clear that the approach of the Court depended upon the facts and circumstances of each case, the law applicables the nature of the right claimed by the person affected and so on. Having considered the principles emerging from the above cases, we are inclined to say that the aforesaid statement of law in <NAME> v. <NAME>, stated with reference to <NAME>, is the appropriate one to adopt as a general rule - and we are supported by the decisions of this Court in saying so. We must s however, forewarn that decisions on the applicability of the principles of possible nor necessary to refer to all of them, particularly in view of the recent <ORG> judgments. We will refer only to a few of them to explain our view point.

<CITATION> (1958 S.C.R. 595] S.R.Das,CJ., speaking for the Constitution Bench, had this to say:

"If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play, the superior court may, we thinks quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to its it confirmed what ex-facie was a nullity for reasons aforementioned."

<CITATION> [1969 (3) S.C.C.392], Hidayatullah,CJ. [speaking for the Bench comprising himself and G.K.Mitter,J.] made the following pertinent observations:

"From this material it is aruged that the principles of natural justice were violated because the right of the appellant to have his own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt. In support of these contentions a number of rulings are cited chief among which are <CITATION> (1965) 3 SCR 135; <CITATION> (1967) 3 SCR 49. There is no doubt that if the principles of natural justice are violated and there is by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of particular right.....Anyway the questions which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representation and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in his case by not examining the two retired Superintending Engineers whom he had cited or any one of them."

(Emphasis added) Pausing here, we may notice two decisions of this Court where the test of prejudice was rejected, viz., <ORG> v. Secretary (F&A) Government of Andhra Pradesh (1977 A.P. 2313) and <CITATION> (1981 (1) 3.C.R.746) both rendered by three-Judge <NAME>. But if one notices the facts of those cases, it would be evident that they were cases of total absence of notice as in the case of <NAME> v. <NAME>. In the former case, the Government allowed a revision filed under Section 77 of the Andhra Pradesh Cooperative Societies Act, 1964 without notice to opposite party, inspite of a request therefor. Para-9 brings out the factual position and Para-11 the legal proposition. They read thus:

"On the very day, viz., 6th October, 1976 when the respondents filed their revision before the <ORG>, the appellant filed an application to the <ORG> disputing the claim of the village societies. The appellant also filed before the <ORG> on 28th October, 1976. On 5th November, 1976, the appellant prayed to the <ORG> for an opportunity to file counter in the revision petition filed by the respondents. The <ORG>, however, without any notice to the appellant, passed final orders on 4th December, 1976, allowing the two review petitions filed by the village societies and set aside the order of the Registrar dated 10th December, 1975.....

The short question that arises for decision is whether the order of the <ORG> in revision which was passed under section 77 of the Act is invalid for non-compliance with section 77(2) which provides that no order rejudicial to any person shall be passed under sub- section (1) unless such person has been given an opportunity of making his representation. It is submitted that the <ORG> did not afford any opportunity to the appellant for making representation before it. <ORG> rejected this plea on the ground that from a perusal of the voluntary application filed by the appellant it was clear that the appellant had anyhow met with the points urged by the respondents in their revision petition before the <ORG>. We are, however, unable to accept the view of <ORG> as correct."

Similarly, <NAME>'s case was one where <ORG> was superseded even without a notice to the committee, again a case like <NAME> v. <NAME>. After referring to certain English and Indian decisions, <NAME>J.made the following observation:

"In our view the principle of natural justice know of justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had natural justice been observed. The non-observance of natural justice is itself prejudice to any man proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the <ORG> may not issue its write to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Course do not issue futile writs. We do not agree with the contrary view taken by the Delhi High <ORG> in the judgement under appeal."

The observations made in S. L . Kapoor have to be understood in the context of the facts of that case and, of course, subject to the dicta of <ORG> referred to hereinafter. <CITATION> (1973) (1) S.C.C.805),the denial of opportunity to cross- examine the material witnesses was held not to vitiate the order made. It was a case where certain male students entered a girls' hostel during the night and misbehaved with the girls. The committee appointed to enquire into the matter recorded the statements of girls in camera and used them [on the question of identity of miscreants] against the appellants without allowing them to cross-examine the girls on the ground that such a course would reveal the identity of the girls and would expose them to further indignities and also because the enquiry was held by a committee of responsible persons.

<CITATION> . (1984 (1) S.C.C.43), Sabyasachi Mukharji, J., speaking for a three- Judge Bench, considered the question whether violation of each and very facet of principles of natural justice has the effect of vitiating the enquiry. The learned Judge observed:

"The basic concept is fair play in action administrative, judicial or quasi judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified of given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-

examination must inevitable form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross -examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation to the acts, absence of opportunity to cross-examination does not create any prejudice in such cases. The principles of natural justice will, therefore, depend upon the facts and circumstances of each particular case. We have set out hereinbefore, the actual facts and circumstances of the case. The appellant was associated with the preliminary investigation that was conducted against him.

He does not deny or dispute that. Information and materials undoubtedly were gathered not in his presence but whatever information was there and gathered namely, the versions of the persons, the particular entries which required examination were shown to him. He was conveyed the information given and his explanation was asked for. He participated in that investigation. He gave his explanation but he did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts."

It was accordingly held that the enquiry held and the punishment imposed cannot be said to have been vitiated on account of an opportunity to cross-examine certain witnesses not having been afforded to him.* In Managing Director, E.C.I.L. V. B Karunkar [1993 (4) S.C.C.727], a Constitution Bench did take the view that before an employee is punished in a disciplinary enquiry, a copy of the enquiry report should be furnished to him (i.e., wherever an enquiry officer is appointed and he submits a report to <ORG>). It was held that not furnishing the report amounts to denial of natural justice. At the same time, it was held that just because it is shown that a copy of the enquiry officer's report is not furnished, the punishment ought not be set aside as a matter of course. It was directed that in such cases, a copy af the report should be furnished to the delinquent officer and his comments obtained in that behalf and that the court should interfere with the punishment order only if it is satisfied that there has been a failure of justice. The

------------------------------------------------------------ *The very same test is applied by a three-Judge Bench in <CITATION> . (1980 (3) S.C.R.179).

Liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry form the stage of furnishing him with the report ****** (Emphasis added) To the same effect is the decision of another Constitution Bench in <CITATION> . (1993 (1) S.C.C.78), a case arising under Chapter XX-C of the income Tax Act . At pages 110-111, the following observations are relevant:

"This brings us to the question of relief. We find that the order of compulsory purchase under Section 269-UD(1) of the income Tax Act which was served on the petitioner in the night of December 15, 1986, has been made without any show-

cause notice being served on the petitioner and without the petitioner or other affected parties having been given any opportunity to show cause against an order of compulsory purchase nor were the reasons for the said order set out in the order or communicated to the petitioner or other concerned parties with the order. In view of what we have stated earlier the order is clearly bad in law and is set aside."

Even so, this Court did not set aside the order of compulsory purchase but devised an appropriate procedure so that the "laudable object" underlying Chapter XX-C is not defeated and at the same time the persons affected get an opportunity to put forward their case against the

------------------------------------------------------------ ***** The decision in <CITATION> (1967(2) S.C.R.625), it is obvious, has to be read subject to this decision.

following paragraph [applicable in cases where the order of punishment is subsequent to November 20, 1990, the date of judgment in <CITATION> (1991(1) S.C.C. 588 ) is apposite:

"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 <ORG> 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, <ORG> comes to the conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given <ORG> Should not interfere with the order of punishment. The Court/Tribunal should not interfere with the order of punishment <ORG> 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 <ORG> 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 reversional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if <ORG> 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, <ORG> sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with proposed acquisition.

The decisions cited above make one thing clear, viz., principles of natural justice cannot be to reduced to any hard and fast formulae. As said in Russell c. Duke of Norfolk [1949 (1) All.E.R.109] way back in 1949, these principle cannot be put in a straight-jacket. Their applicability depends upon the context and the facts and circumstances of each case. [ <CITATION> commissioner (1978 (2) S.C.R.272)]. The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. [ <CITATION> 1982 (1) S.C.C.271) and <CITATION> (1981 (1) S.C.C.664)]. As pointed out by this Court in <CITATION> d India & Ors. (1969 (2) S.C.C.262), the dividing line between quasi-judicial function and administrative function [affecting the rights of a party] has become quite thin and almost indistinguishable a fact also emphasized by <ORG> in C.C.C.U. v. <ORG> [supra] where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the Cases it is from the standpoint of fair hearing - applying the test of prejudice, as it may be called - that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/no hearing may defeat the very proceeding - which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases, e.g., <CITATION> (1984 (3) S.C.C.465). There may also be cases where the public interest or the interests of the security of <ORG> or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2)] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether [as in <NAME> v. <NAME>]. It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression [<NAME> v.<NAME>]. But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [ <CITATION> ] or without affording him a due opportunity of cross-examining a witness [K.L.Tripathi] it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touch-stone of prejudice, i.e., whether, all in all, the person concerned did nor did not have a fair hearing. It would not be correct - in the light of The above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunkar should govern all cases where the complaint is not that there was no hearing [no notice, no opportunity and no hearing] but one of not affording a proper hearing [i.e., adequate or a full hearing] or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touch-stone of prejudice as aforesaid.

The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice - which are now understood as synonymous with the obligation to provide a fair hearing***** - is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to sub-clause

(iii) concerned herein. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by <ORG>". Now take a case - not the one before us where the copies of statements are supplied only two

------------------------------------------------------------ *****See the discussion of this aspect at Page 515 of Wade: Administrative Law (Seventh Edition). In particular, he refers to the speech of Lord <NAME> in C.C.S.U. v. Minister for the Civil Service [ 1985 A.C.374 at 407] where he used both these concepts as signifying the same thing. days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient for him to prepare himself for cross-examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the punishment awarded to be set aside on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by <ORG> that sub-clause (iii) is mandatory since it uses the expression "shall". Merely because, word "shall" is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is his interest a & not in public interest, vide <CITATION> . (1964 (6) S.C.R.1001). <NAME>J., speaking for the <ORG>, held:

"Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property. We have assumed that s.35 of the Act is a mandatory provision. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non- observance of the provision. lt is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of s.35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under s.35 of the Act."

The principle of the above decision was applied by this Court in Krishan Lal State of Jammu & Kashmir [1994 (4) S.C.C.422) in the case of an express statutory provision governing a disciplinary enquiry. It was a case where the employee was dismissed without supplying him a copy of the enquiry officer's report as required by Section 17(5) of the Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962. This was treated as mandatory. The question was how should the said complaint be dealt with. This Court held:

"Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though <NAME> has urged that this requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the cause of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose.

We, therefore, hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law.

The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case [1993 (4) SCC 727] in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which <ORG> did not concede that the order of dismissal passed without furnishing copy of the inquiry officer's report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph

According to us, therefore, the legal and proper order to be passed in the present case also, despite a mandatory provision having been violated, is to require the employer to furnish a copy of the proceeding and to call upon <ORG> to decide thereafter as to whether non-furnishing of the copy prejudiced the appellant/petitioner and the same has made difference to the ultimate finding and punishment given. If this question would be answered in affirmative, <ORG> would set aside the dismissal order by granting such consequential reliefs as deemed just and proper."

Sub-clause (iii) is, without a doubt, conceived in the interest of the delinquent officer and hence, The could waive it. From his conduct, the respondent must be deemed to have waived it. This is an aspect which must be borne in mind while examining a complaint of non-observance of procedural rules governing such enquiries. It is trite to remember that, af a rule, all such procedure; rules are designed to afford a full and proper opportunity to the delinquent officer/employee to defend himself and are, therefore, conceived in his interest. Hence, whether mandatory or directory, they would normally be conceived in his interest only.

Now, coming back to the illustration given by us in the preceding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. 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.

We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]:

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The <ORG> or the <ORG> should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The <ORG> may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on theground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the <ORG> or <ORG> should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by <ORG> in B.Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the <ORG> or the <ORG> should make a distinction between a total violation of natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing".

(a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the <ORG> to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the <ORG> or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the <ORG>/ Tribunal/<ORG> must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the <ORG> may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.

Now, in which of the above principles does the violation of sub-clause (iii) concerned herein fall? In our opinion, it falls under Principles No.3 and 4(a) mentioned above. Though the copies of the statements of two witnesses [<NAME>, <NAME> and <NAME>] were not furnished, the respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, <NAME> was not examined and only <NAME> was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross- examining the witnesses or to defend himself. <ORG> has not found that any prejudice has resulted from the said violation. <ORG> has no doubt said that it has prejudiced the respondent's case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. <ORG>, of course, has not refereed to aspect of prejudice at all.

For the above reasons, we hold that no prejudice has resulted to the respondent on account of not furnishing him the copies of the statements of witnesses. We are satisfied that on account of the said violations it cannot he said that the respondent did not have a fair hearing or that the disciplinary enquiry against him was not a fair enquiry. Accordingly, we allow the appeal and set aside the judgment of <ORG> affirming the judgments of <ORG> and <ORG>. the suit filed by the respondent shall stand dismissed.

No costs.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF ORISSA. DATE OF JUDGMENT: 07/04/1954 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN MAHAJAN, <NAME> (CJ) <NAME>, <NAME> CITATION: 1954 AIR 359 1955 SCR 92 CITATOR INFO : A 1955 SC 41 (11) R 1959 SC 707 (5) R 1961 SC1381 (10) F 1977 SC 786 (9,12,14) ACT: Prevention of Corruption Act , 1947 (II of 1947) Section 5(1)(2) ,(3) and section 6- - sanction under section 6 --Whether necessary to be in any particular form-No particulars given in the charge or sanction-Legal effect thereof. HEADNOTE: Held, that it is not necessary for the sanction for an offence punishable under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) to be in any Particular form or in writing or for it to set out the facts in respect of which it is given. It is, however, desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way. Where the sanction was confined to section 5(2) of the Act, it could not, under the circumstances of the case, have related to anything but clause (a) of sub-section (1) of section 5 and therefore an omission to mention clause (a) in the sanction did not invalidate it. under section 5(3) of the Act all that the prosecution has to do is to show that the accused or some person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the <ORG> is bound to presume unless the contrary is proved, that the accused is guilty of the new offence created by section 5 namely criminal misconduct in the discharge of his official duty. Held, also that there was no illegality either in the sanction or in the charge on the ground that no particulars were given because the offence under section 5(1)(a) of the Prevention of Corruption Act does not consist of individual acts of bribe taking as in section 161 I.P. C. but is of a general character and individual instances are not necessary because of the presumption which section 5(3) requires the <ORG> to draw. <CITATION> (A.I.R. 1948 P.C. 82) referred to. JUDGMENT:

CRlMlNAL APPELLATE JURISDICTION: Criminal Appeal No. 33 of 1952.

Appeal under Article 134(1)(c) from the Judgment and Order dated the 19th February, 1952, of <ORG> at Cuttack in Criminal Appeal No. 66 of 1950 arising out of the Judgment and Order dated the 19th September, 1950, of <ORG>, Cuttack-Dhenkanal, Cuttack, in Sessions Trial No. 9-C of 1950.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, for the respondent.

1954. April 7. The Judgment of the Court was delivered by <NAME> -The appellant was an Inspector of Factories under the Government of Orissa. 'It was a part of his duty to inspect factories and mills in the State of Orissa. He toured the districts of Koraput and Balasore from 18th August, 1948, to 27th August, 1948, and from 29th September, 1948, to 30th October, 1948, respectively. The prosecution case is that he collected bribes from persons connected with some of the mills he inspected in those districts. It is said that he used to threaten to close their mills and impose other penalties for alleged defects unless they paid him a bribe.

On 3rd October, 1948, he was camping at the Dak Bungalow at Basta in the Balasore district. Because of information received against him his person and belongings were searched on that day and a sum of Rs. 3,148 was recovered from him consisting of Rs. 450 paid at the time as a trap and Rs. 2,698 already in his possession. He was arrested on the spot but was later released on bail.

Departmental and other proceedings were taken against him and he was eventually brought to trial on 29th March, 1950, and charged under section 5(2) of the Prevention of Corruption Act (II of 1947) for criminal misconduct in the shape of habitually accepting illegal gratification. He was also separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but we are not concerned here with that as he was acquitted on all three counts. His, conviction here is under section 5(2) alone. <ORG> sentenced him to rigorous imprisonment for four years and a fine of Rs. 5,000. <ORG> upheld the conviction on appeal but reduced the sentence to two years and a fine of Rs. 3,000.

The accused applied for a certificate to appeal under article 134(1)(c) on three points. <ORG> held that two of them were not of sufficient importance to justify the issue of a certificate-particullarly as one of the two was covered by the principle laid down by this Court. But it granted leave on all three as it considered that the first point was of importance. The points were formulated as follows:

"(i) whether the view of this Court as to the requirement of sanction in a case of this kind and the interpretation of <NAME>'s case in A.I.R. 1948 P.C. p. 82 adopted by this Court in its judgment are correct;

(ii)whether the interpretation of this Court relating to the requirements as to the corroboration of an accomplice witness in a bribery case with reference to the latest unreported case of <ORG> which has been referred to in the judgment and which has since been reported in 1952 S.C.J. p. 46 is correct;

and

(iii)whether the law as propounded by the decision now' sought to be appealed against with reference to the considerations that arise in judging the presumptions under section 5(3) of the Prevention of Corruption Act is correct."

The first point arises in this way. Four kinds of criminal misconduct are set out in section 5 of the Prevention of Corruption Act. They are enumerated in clauses (a), (b),

(c) and (d) of sub-section (1). The sanction is general and does not specify which of these four offences was, meant. It runs as follows:

" Government of Orissa.

<ORG>.

Order No. 4561/Com., dated 3-11-1948.

In pursuance of section 6 of the Prevention of Corruption Act, 1947 (II of 1947), the Governor of Orissa is hereby pleased to accord sanction for prosecution of <NAME>, Inspector of <ORG> Orissa, employed in connection with the affairs of the Province under sub-section (2) of section 5 of the said Act.

2. Nature of offence committed:

Criminal misconduct in discharge of official duty.

By order of the governor, <NAME>, Secretary to <ORG>. It was contended that <ORG> held in <CITATION> (1) that such a sanction is invalid. <ORG> rejected this argument. We agree with <ORG>.

The passage of the <ORG> judgment on which reliance is placed is as follows "In their Lordships' view, in order to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be' referred to on th; face of the sanction but this is not essential since clause 23 does not require the sanction to be in an particular form nor even to be in writing. But if the facts constituting the offence charged are not known on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority."

The Judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control). Order, 1943, but the principles apply here. It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given (1) A.I.R. 1948 P.C. 82.

aliunde that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.

<ORG> finds that the facts to which the sanction relates were duly placed before the proper sanctioning authority. We need not consider the evidence about telephone calls and the like because the letter of the District Magistrate asking for sanction (Exhibit 26) is enough to show the facts on which the sanction is based. 'It is in these terms:

"I have the honour to report that <NAME>, Inspector of Factories, Orissa, in the course of his visit to this district had been -visiting certain mills, and on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or Proprietor of Mills under threat of mischief to the mill owners, it was arranged to verify the truth of this information by handing over 3 hundred rupee notes marked with my initials in presence of the Superintendent of Police and two other respectable gentlemen and millowners, on the evening of the 2nd October, 1948. On the 3rd October the Factory Inspector having actually received the illegal gratification of Rs. 45o which sum included the three marked hundred rupee notes, the Prosecuting Inspector seized the marked notes along with a further heavy sum of Rs. 2,698 from his possession. Under section 6 of the Prevention of Corruption Act, 1947, the accused being a public servant in the employ of <ORG> the sanction of <ORG> is necessary prior to taking cognisance of an offence under section 161 , Indian Penal Code or subsection (2) of section 5 of the Act."

A sanction based on the facts set out in this letter,. namely the information received about the collection of heavy sums as bribes and the finding of Rs. 2,698 in his possession would be sufficient to validate the present prosecution. It is evident from this letter and from the other evidence that the facts placed before the Government could only relate to offences under section 161 of the Indian Penal Code and clause (a) of section 5(1) of the Prevention of Corruption Act. They could not relate to clauses (b) or (c). Therefore, when the sanction was confined to section 5 (2) it could not, in the circumstances of the case, have related to anything but clause (a) of sub- section (1) of section 5 . Therefore, the omission to mention clause (a) in the sanction does not invalidate it. The present prosecution is confined to section 5(1)(a) which runs as follows:

"(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code."

Then comes sub-section (3) which sets out a new rule of evidence in these terms:

"In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the <ORG> shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." Therefore, all that the prosecution has to do is to show that the accused, or some person on his behalf, is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the <ORG> has to presume, unless the contrary is proved, that the accused is guilty of the new offence created by section 5 , namely criminal misconduct in the discharge of his official duty.

Now the accused was found in possession of Rs. 3,148. He accounted for Rs. 450 of that sum by showing that it was paid to him at the time as a trap. He has been acquitted of that offence, so all he had to account for was the balance Rs. 2,698. This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this Court. Therefore, all that remains to be seen is whether this was disproportionate to his known sources of income. The accused is a Government Factory Inspector and we were told that his salary is only Rs. 450 a month. <ORG> finds that the total sums drawn by him during his entire period of service of thirteen months was Rs. 6,045 as salary and Rs. 2,155 as travelling allowance. It also finds that he owns 0.648 acres of land which brings in no income worth the name. On the expenditure side of the accused's account <ORG> finds that he has a substantial family establishment which would not leave him enough margin for saving such a large sum of money. No other source of income has been disclosed. It is evident that no touring officer of his status and in his position would require such a large sum of money for his touring purposes even if he was away from headquarters for a month. His explanation was considered unsatisfactory by both Courts and was disbelieved. These are all questions of fact. Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory, section 5(3) was at once attracted and the Court was bound to presume (the word used in the section is "shall" and not "may") that the accused was guilty under section 5(2) , especially as this part of the section goes on to say-

"and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." These facts alone are enough to sustain the conviction and we need not consider the other matters. <ORG> was right in holding that the sanction was sufficient and in convicting the accused.

The third point set out in the certificate of <ORG> relates to the absence of particulars in the charge and, we gathered from the arguments, in the sanction. But no particulars need be set out in the charge in such a case because the offence under section 5(1)(a) does not consist of individual acts of bribe taking as in section 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove the general averment in particular cases but it is by no means necessary because of the presumption which section 5(3) requires the <ORG> to draw. There was therefore no illegality either in the sanction or in the charge; nor has the accused been prejudiced because he knew everything that was being urged against him and led evidence to refute the facts on which the prosecution relied. He was also questioned about the material facts set out above in his examination under section 342 of the Criminal Procedure Code and was given a chance then as well to give such explanation as he wished. The appeal fails and is dismissed.

Appeal dismissed.


JUDGMENT <NAME>, J.

1. This is an application to revise an order made by the learned District <NAME> of Tenali by which he -allowed a petition presented on behalf of the second respondent here that she may also be impleaded as a party to a suit O.S. No. 66 of 1935. The application was presented under Order 1, Rule 10 of the Code of Civil Procedure. The relevant portion of the rule is worded as follows:

The <ORG> may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the <ORG> to be just, order... that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the <ORG> may be necessary in order to enable the <ORG> effectually, and completely to adjudicate upon and settle all the questions involved in the suit, be added.

2. It is obvious from this provision that the <ORG> in making an order directing a new party to be added must be satisfied either that that party ought to have been joined as plaintiff or defendant or that the presence of that party is necessary to enable the <ORG> effectually and completely to adjudicate upon and settle all the questions involved in the suit. From the order of the learned District Munsif it appears that at the hearing of the application, the <NAME> for the plaintiffs was absent and only the first plaintiff was present in person to represent his objections. The learned District Munsif says that the first plaintiff was unable to explain what detriment would be suffered by him if the petition was granted. Then he says that he sees no detriment that would be caused to the plaintiff if the second respondent here were brought on record as the second defendant. He also says that he does not see how it widens the scope of the suit or changes the character of it. From these statements contained in the order it is clear that the learned District Munsif did not apply his mind to the essential requisites prescribed by Order 1, Rule 10 and therefore it became necessary for the learned Advocates for the parties to address lengthy arguments before me in support of their respective contentions.

3. The suit was filed by three plaintiffs and the main reliefs asked for in the plaint were the following:

(1) to declare the plaintiffs' hereditary right to perform archaka service in <ORG> situated in the village of Nidubrolu;

(2) to remove the defendant from the position of archaka and to declare that the defendant has absolutely no right to the archaka service;

(3) to remove the defendant from possession of the house mentioned as item 2 in the schedule to the plaint and to put the plaintiffs in possession thereof;

(4) to direct the defendant to give the plaintiffs the property mentioned in item 3 of the schedule to the plaint or its value; and (5) to grant a permanent injunction restraining the defendant from interfering in future with the plaintiffs' enjoyment of the rights to perform archaka service.

4. The following geneological table is necessary to understand the plaintiffs' case as disclosed in the plaint.

<NAME> - died in 1921. (died) 1st plaintiff. | | Daughter (died). | __________________________________________________________ | | | Daughter Daughter- Daughter petitioner (died). 3rd plaintiff before <ORG> married 2nd who has been directed plaintiff by <ORG> to be impleaded as 2nd defendant.

5. The plaint allegations are to the effect that the hereditary right to the archaka service in the temple was vested in the ancestors of <NAME> and <NAME> who were both the brothers of the first plaintiff that these two brothers are now dead but that during their lifetime they were both of them performing the archaka service personally each of them doing duty alternately for six months at a time in the year and that as remuneration for such service they were enjoying separately in 'two shares the archaka service inam lands. The first plaintiff's case according to the plaint is that on the death of <NAME> his right to enjoy the one-half of the archaka service inam lands and his right to perform archaka service for a period of six months in the year devolved on the first plaintiff. The case of the second and third plaintiffs according to the plaint is that on the death of <NAME> whose daughter the third plaintiff is, the corresponding rights which vested in <NAME> devolved on the third plaintiff and her husband the second plaintiff. How the third plaintiff's husband, the second plaintiff became entitled to this right is not explained in the plaint. The plaint goes on to say that the second plaintiff's father <NAME> was in actual management of the right mentioned above on behalf of the plaintiffs and while he was in such management he had appointed the defendant as a temporary clerk for performing the archaka service and had put him in possession of the house mentioned in Schedule B to the plaint on the distinct understanding that he should relinquish archaka service and deliver possession of the house whenever he was called upon to do so. Subsequently an arrangement was made between the first plaintiff ;on the one hand and the second and third plaintiffs on the other according to which the latter were to perform the archaka service alternately for six months at a time in the year and the first period of the six months ended on the 30th of June, 1933. Thereupon the first plaintiff caused the second and third plaintiffs to send a registered notice to the defendant informing him that the first plaintiff's right to perform the service for six months commenced on the 1st of July, 1933 and that since the plaintiffs had decided to perform the service themselves the defendant should relinquish such service and deliver possession of the house and other perquisites that were given to him during the time that he was called upon to perform such service. To that notice the defendant replied stating that he was appointed archaka not on behalf of the plaintiffs but by the trustees of the temple appointed under <ORG>.

6. The first defendant in his written statement alleged inter alia that the first plaintiff was not entitled to any relief in respect of the temple because he had been given away in adoption to another family as a result of which he had lost all his rights in his natural family and that on the death of <NAME>, his rights devolved on his two daughters, namely, the third plaintiff and her sister the respondent who has now on her application been directed by the Court below to be impleaded as second defendant. Thus the first defendant's version was that neither the first plaintiff nor the second plaintiff had any interest whatsoever in the archaka service or in the service inam lands but that the right involved in the suit was vested in the third plaintiff and her sister, the second respondent to this application. The first defendant also asked in his written statement for further particulars as to how the right that was vested in <NAME> devolved upon the third plaintiff and her husband the second plaintiff and stated that on such particulars being furnished he would plead further. It was after this written statement was filed that the second respondent who as already stated is the sister of the third plaintiff came forward with her application to be impleaded as a party to the suit. Her version in the petition filed by her was that during the minority of herself and the third plaintiff their uncle <NAME> who is also the father-in-law of the third plaintiff was invested with the right of managing the temple and the service inam lands and also performing the archaka service on behalf of the two sisters. Her case therefore was that she was entitled to one-half of the suit properties, that she had an equal joint interest with the third plaintiff in the suit property and that consequently she was a necessary party to the suit. This application was resisted before <ORG> on behalf of the three plaintiffs who contended that in case the petition was allowed and the respondent was impleaded as a party, it would lead to a triangular fight about title and that the effect of including her as a party would be to convert the suit which was one in ejectment into a suit based on title. They also pleaded that the right of the present respondent if any to the temple lands had become barred by limitation. These are the main contentions that are urged before me on behalf of the petitioners by their learned Advocate Mr. <NAME>. He relies on the English decisions reported in <NAME> v. <NAME> (1892) 1 Ch. 487 and also on the decision of a single Judge of this Court reported in <CITATION> for Hindu Religious Endowments, Madras (1926) 51 M.L.J. 148 : I.L.R. 50 Mad. 34. There are other reported cases relied on by him in support of his contention that the second respondent should not have been impleaded as a party to the suit and those are the decisions reported in <CITATION> (1934) 68 M.L.J. 236, <CITATION> (1938) 41 Bom. L.R. 249 at 256, <CITATION> A.I.R. 1929 Mad. 443 and <NAME> v. Alt Miahe (1923) 28 C.W.N. 805.

7. The learned Advocate for the respondent on the other hand contends that the subject-matter of the suit concerns the newly added party and that the suit is not a simple suit in ejectment but that it is a suit for a declaration that the three plaintiffs are solely entitled to a hereditary right to perform archaka service in the temple and to enjoy the service inam lands. He contends that as a joint interest in those rights is claimed by the second respondent her presence as a party to the suit is necessary to avoid multiplicity of suits. In support of his contentions he relies mainly upon the decision in <CITATION> (1881) I.L.R. 5 Mad. 52 which has been followed by <NAME>, J., in the decision reported in <CITATION> A.I.R. 1929 Mad. 443. He also relies upon the decision in Montgomery v. Foy, Morgan and Co. (1895) 2 Q.B. 321, <CITATION> A.I.R. 1935 Mad. 353, <CITATION> (1937) 1 M.L.J. 597 and <CITATION> A.I.R. 1929 Mad. 403 (1). I am satisfied that the contentions of the learned Advocate for the respondents are well founded in view of the main relief asked for by the three plaintiffs in their plaint. This, in my view, is a case in which the presence of the second defendant-respondent before <ORG> is necessary within the meaning of Order 1, Rule 10 of the Civil Procedure Code to enable the <ORG> effectually and completely to adjudicate upon and settle all the questions involved in the suit. By avoiding to implead her as a party to the suit the plaintiffs are seeking to obtain a relief which will not completely dispose of all the matters in controversy involved in the suit.

8. The learned Judges who decided the case reported in <CITATION> (1881) I.L.R. 5 Mad. 52 were Sir Charles Turner, C.J. and <NAME>, J. The decision turned on the scope of Section 32 of the Code of Civil Procedure of 1877. Under that section also the Court had the power of directing a person to be made a party:

Whose presence before the <ORG> may be necessary to enable the <ORG> effectually and completely to adjudicate upon and settle all the questions involved in the suit.

9. These are the words that occur in Order 1, Rule 10(2) of the present Code also. Dealing with these words the learned Judges say as follows:

Is it meant by these words that a person not originally impleaded is to be made a party only if the questions raised in the suit cannot otherwise be completely and effectually determined between the parties to the suit? or is it meant completely and effectually determined so that they shall not be again raised in that or in any other suit between the parties to the suit or any of them and third parties? To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, 'between the parties to the suit....

10. This seems to me to be a complete and effective answer to a similar argument addressed in the present case by the learned Advocate for the petitioner. Following the decisions reported in <CITATION> (1881) I.L.R. 5 Mad. 52 and <CITATION> A.I.R. 1929 Mad. 443, I therefore hold that the learned District Munsif acted correctly in allowing the petition of the second respondent to be impleaded as a party to the suit. This Civil Revision Petition is in the circumstances dismissed wiih costs. The order staying the trial before the Court below is cancelled.