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TMI Blog1996 (3) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the said violation. The Appellate Court 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. The High Court, of course, has not refereed to aspect of prejudice at all. Accordingly, we allow the appeal and set aside the judgment of the High Court affirming the judgments of the Trial Court and Appellate Court the suit filed by the respondent shall stand dismissed. - C.A. 5129 OF 1996 - - - Dated:- 27-3-1996 - JEEVAN REDDY, B.P. AND PARIPOORNAN, K.S., JJ. JUDGMENT: B.P JEEVAN REDDY, J. Leave granted. Heard counsel for the parties. This appeal preferred against the judgment and decree of the Punjab and Haryana High Court 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 Sh. Balwant Singh in December 1985, in the crop loan accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (DWs.1 to 3) on behalf of the respondent. The Bank examined Sri K.J. Wadhan and Sri P.N.Garg who had conducted the preliminary enquiry and recorded the statements of Balwant Singh among others. The Patwari, Kaur Singh, was examined as PW-5. The other three witnesses, PWs.3, 4 and 6 are the employees of the Bank who spoke to the various aspects of the Bank's case. Balwant Singh 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, Bhatinda 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. The Trial Court rejected all the grounds urged by the respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many as six witnesses were examined including two officers of the Bank who conducted the preliminary enquiry and had recorded the statements of witnesses including Balwant Singh. They spoke to the preliminary enquiry conducted by them and the Statement of Balwant Singh recorded by them. Other Bank officials were examined to establish that the letter Exh.P-6 addressed to the Tehsildar, Bhatinda was in fact written by and bears the signature of the respondent. Kaur Singh, 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 Balwant Singh. Neither the Trial Court nor the first Appellate Court have found that it is a case of no evidence. The additional ground assigned by the High Court 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 the Appellate Court is to the following effect: though a list of documents/witnesses was furnished to the respondent before the commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the enquiry report that the six witnesses for the Bank 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, Prakash Singh and Kaur Singh (PWs.3, 4 and 5) on July 7, 1987 and Sri Ashwini Kumar The three defence witnesses so examined on July 27, 1987. It is thus evident that though copies of the statements of Kaur Singh and Balwant Singh 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 Balwant Singh was not examined at the oral enquiry at all as stated above. Only Kaur Singh, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the House of Lords in Ridge v. Baldwin [1964 A.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered 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 the Establishments Committee. 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 the Establishments Committee. Thereupon the appellants brought an action in Singapore Courts which ultimately reached the Privy Council. he Privy Council recalled in the first instances the statement of law on this subject as stated by Lord Reid in Ridge v. Baldwin 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 disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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) Calvin v. Carr 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 . The Privy Council 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inds us of what the Supreme Court 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 everyone 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], the Supreme Court 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 Grewal v. Canada [1992 (1) Canada Federal Court Reports where the concerned statute mandated that no resolution of a school Board 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 Board. The teacher concerned, Malloch, was informed more than three weeks in advance. But his written request for an opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice is established to have resulted from the procedural impropriety, no interference was called for. In another case, Bushell v. Secretary of State for Environment [1981 A.C.75 the House of Lords held that in the absence of statutory rules as to the conduct of a local enquiry under the Highways Acts 1959 the procedure to be followed was a matter of discretion for the Secretary of State 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 Calvin v. Carr, stated with reference to Vasudevan Pillai, 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 Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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., Chintapalli Agency T.A.S.C.S. Limited v. Secretary (F A) Government of Andhra Pradesh (1977 A.P. 2313) and S.L.Kapoor v. Jagmohan (1981 (1) 3.C.R.746) both rendered by three-Judge Benches. 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 Ridge v. Baldwin. 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., 6 th October, 1976 when the respondents filed their revision before the Government, the appellant filed an application to the Government disputing the claim of the village societies. The appellant also filed before the Government on 28 th October, 1976. On 5th November, 1976, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understood in the context of the facts of that case and, of course, subject to the dicta of the Constitution Bench referred to hereinafter. In Hiravath Misra v. Rajendra Medical College (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. In K.L. Triathi v. State Band of India Ors. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 the Disciplinary Authority). 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 Sunil Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report would have made no difference to the ultimate findings and the punishment given the Court/Tribunal Should not interfere with the order of punishment. The Court/Tribunal should not interfere with the order of punishment the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or 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 the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with proposed acquisition. The decisions c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, 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 Ridge v. Baldwin]. 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 [Calvin v.Carr]. But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report [ Managing Director, E.C.I.L. v. B.Karunkar] 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Dhirendra Nath Gorai v. Sudhir Chandra Ghosh Ors. (1964 (6) S.C.R.1001). Subba Rao,J., speaking for the Court, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the Constitution Bench 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 31........ 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 the High Court 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, the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry 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 Court 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequate 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 Authority 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 Court 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 Court/ Tribunal/Authority 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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