ORDER
1. The writ petition is filed challenging the orders passed by the 1st respondent dated 5-2-1999 dismissing the
petitioner from service.
2. The fads leading to the filing of the writ petition can be succinctly traced out before going into the merits of the case.
3. Petitioner was initially appointed as Assistant Secretary in the year 1972 in Visakhapatnam Port Trust and subsequently, he was promoted as Deputy Secretary on 8-5-1978 and later promoted as Secretary in 1992. While he was functioning as Secretary, he was issued with a charge-sheet dated 12-10-1996 containing three charges. The details of the charges will be referred to in subsequent paragraphs. Petitioner submitted his explanation to the charge-sheet. Thereafter a regular enquiry was conducted and an officer of the Vigilance Department of Government of India was
appointed as Enquiry Officer. Before the Enquiry Officer, 17 witnesses were examined for the department and 57 documents were filed, while the charged officer examined 7 witnesses and marked 24 documents. The Enquiry Officer held the charges proved. Consequently the disciplinary authority, the 1st respondent herein considered the enquiry report and provided an opportunity to the petitioner calling upon the petitioner to submit the explanation if any. Thereafter the petitioner submitted his explanation and finally after considering the matter the 1st respondent passed an order on 5-2-1999 dismissing the petitioner from service. Aggrieved by the said order, the present writ petition has been filed.
4. In the counter filed by the 1st respondent, the averments made in the affidavit have denied in general. It was stated that the enquiry was conducted in accordance with the regulations and principles of natural justice have been followed and sufficient opportunity was given to the petitioner to defend his case. The Enquiry Officer found the charges proved. Therefore, basing on the report of the Enquiry Officer, the disciplinary authority considered the matter and passed the appropriate order dismissing the petitioner. Hence, it was submitted that the order is quite legal and valid and the same is unassailable.
5. It is also stated that the petitioner failed to avail the statutory remedy available under the Rules. An appeal lies to the Central Government, the petitioner failed to avail it and therefore, the writ petition itself is not maintainable as the alternative remedy of appeal was is not availed by the petitioner.
6. The issue that calls for consideration is whether the writ petition is not maintainable on the premise that the alternative remedy is available to the petitioner by filing an appeal to the Central
Government and that the order dismissal passed by the 1st respondent is sustainable in law?
7. Before delving into the matter it is necessary to refer to the details of the charges framed against the petitioner and the relevant oral and documentary evidence inducted by both the prosecution and the defence. By a charge-sheet dated 12-10-1996, the disciplinary authority framed the following three charges :
“Article of Charge-I:
That Sri M.P.R. Rectify, while functioning as Secretary, Visakhapatnam Port Trust misusing his official position, after selecting 5 interested candidates for the posts of clerk towards his department’s requirement, further created a large panel of 31 other interested candidates in violation of the established rules and practices in the Port by committing gross and blatant irregularities in the written test. When the above irregularities were prominently reported in the press, he flatly denied the allegations of irregularities by issuing a rejoinder to the press published on 29-9-1992. He further contended in the rejoinder that the candidates kept in the panel were highly qualified and merited and further contended that he ensured compliance of chairman’s Orders by not depriving jobs to genuine candidates. But, contrary to his denial of any irregularities and his contention of his ensuring of jobs to genuine candidates, he has committed serious irregularities blatantly and thus exhibited a conduct unbecoming of his position and thereby failed to maintain absolute integrity and devotion to duty as required under Regulation 3(1) of VPE (Conduct) Regulations, 1964.
Article of charee-II:
That Sri M.P.R. Reddy, while functioning as Secretary, VPT after creating a large
panel of 31 interested candidates for the posts of Clerks in his department by committing serious irregularities blatantly, in violation of the established rules and practices in the VPT, by abusing his official position and with the connivance of Shri D. Kishore Rao the then Dy. Chairman looking after the current duties of the post of Chairman, imposed the empanelled ineligible candidates on other Heads of Departments for absorption against the posts of Clerk in their departments.
Thus he exhibited a conduct un-becoming of his position and thereby failed to maintain absolute integrity and devotion to duty, as required under Regulation 3(1) of VPE (Conduct) Regulations, 1964.
Article of charge-III:
That Sri M.P.R. Reddy, while functioning as Secretary, VPT on 9-7-1993 abusing his official position, forced his entry into the chambers of the Chief Materials Manager, Visakhapatnam Port Trust, without any prior appointment or scheduled meeting or invitation from the Chief Materials Manager, when he was engaged in conducting an interview for selection to the posts of Clerk along with other Members of the Staff Selection Committee constituted for the purpose and further exerted pressure on all the 3 (three) Staff Selection Committee Members including Chairman of the Selection Committee (i.e., Chief Materials Manager) to favour and selection one Sri D. Someswara Reddy (a candidate called for the said interview and selection) as Clerk in the C.M.M. Department.
Thus by the above Act, Sri M.P.R. Reddy has abused and mis-used his official position and exhibited a conduct grossly unbecoming of his position and thereby failed to maintain absolute integrity and devotion to duty as required under
Regulation 3(1) of VPE (Conduct) Regulations, 1964.”
8. Along with the articles of charges, statement of misconduct in support of the charges were also supplied to the petitioner. The petitioner submitted a detailed explanation to the charges framed against him. He denied each and every charge made against him. Thus, the charges are that the petitioner recruited five interested candidates to the posts of Clerks in his department and also prepared panel of 31 candidates, which is in violation of the establishment rules and practice and thereby committed an act of unbecoming of an officer of Visakhapatnam Port Trust. It is also the allegation by the Visakhapatnam Port Trust that the petitioner approached the Selection Committee on 9-7-1993 and exerted pressures on all the Members of the Selection Committee including the Chief Material Manager, Chairman of the Committee to select Mr. D. Someshwar Reddy for the post of Clerk. In this regard, it is to be noted that an enquiry was also conducted by the CBI and in that regard certain statements were also recorded from the employees of the Visakhapatnam Port Trust.
9. The learned Counsel for the petitioner Mr. C.V. Mohan Reddy submits that the 1st respondent has obtained the approval of the Central Government for issuing the dismissal order. Therefore, no appeal is maintainable before the Central Government. Alternatively, he submits that the petitioner is also entitled to file writ petition, if there is gross violation of the principles of natural justice, even though alternative remedy exists under the rules. He further submits that the disciplinary authority has already made up his mind which is reflected in the charge-sheet and therefore, the entire enquiry is vitialed on account of pre-conceived notions entertained by the Enquiry Officer and the disciplinary
authority. The learned Counsel further submits that the sufficient opportunity was not given to the petitioner to defend his case more especially the documents which were sought to be relied on by him to sustain his defence are not furnished and thereby grave prejudice caused to his case constituting violation of the principles of natural justice. He would further contend that the enquiry was conducted contrary of the principles of natural justice and in any event the findings arrived by the Enquiry Officer are perverse and not based on any evidence on record. Thus he would submit that the order passed by the disciplinary authority accepting the findings which do not conform to the evidence on record is illegal and the same is liable to be set aside.
10. On the other hand, the learned senior Counsel for the 1st respondent Mr. Koka Srlnivasa Murthy submits that there is no record to establish that the Central Government was consulted before issuing the order. Therefore, when there is effective and alternative remedy is available to the petitioner, the petitioner is precluded from approaching this Court, even though the writ petition is admitted three years ago. The writ petition has to be dismissed as not maintainable as the petitioner has not availed the opportunity of alternative remedy.
11. Disputing the other contents raised by the learned Counsel for the petitioner, the learned senior Counsel traced out and takes this Court to the parameters of the judicial review by the Writ Courts over the disciplinary matters conducted by the state of instrumentalities of the State and he would further submits that there was no infraction of principles of natural justice. In any event the relevant documents asked for by the petitioner were furnished to him and it is too late in the day to submit that there was violation of the principles of
natural justice. He would submits that the charges framed against the petitioner were so grievous that the officer virtually played fraud on the department and tried to employ his persons by manipulating the answer sheets and since the charges and the said charges having been proved in the enquiry, the punishment meted out to the petitioner cannot be said to be either illegal or unwarranted and this Court would not interfere with the quantum of punishment.
12. It is an admitted fact that the petitioner has not filed the appeal before the Central Government. Under the rules, a regular statutory appeal lies to the Central Government against the order passed by the disciplinary authority. But the contention of the petitioner is that the Central Government was already consulted and therefore, no useful purpose will be served by filing an appeal. Further alternatively, it is also contended that in the instant case there is gross violation of the principles of natural justice, even assuming that such an appeal ties, it is open for the petitioner to approach this Court under Article 226 of Constitution of India without resorting to filing an appeal. The learned Counsel would relies on the judgment reported in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, , and Ram and Shyam Company v. State of Haryana, . But, on the other hand, the learned Counsel for the management relies on the judgment of the Division Bench of Calcutta High Court reported in Bank of India v. Radharaman Samanta, 1999 (4) SLR 358, wherein the Division Bench after considering the entire case law has held that when there was no infraction of the fundamental rights or when the lack of jurisdiction was not involved, the proper remedy would be for the Writ Court to refuse the writ jurisdiction and ask the persons to avail alternative remedy. It cannot be disputed that even
though the statutory remedy of appeal is available under the rules, yet, it cannot be said to be a total bar to approach this Court under Article 226 of Constitution of India when there is infraction of fundamental rights or when there is total lack of jurisdiction also, when there is gross violation of the principles of natural justice thereby causing serious prejudice to the case of the aggrieved.
13. In Venkateswaran’s case (supra), the Supreme Court observed the principle that the party, who applies for issue of a high prerogative writ should, before he approached the Court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion.
14. The only exception to the rule is that there should be a complete lack of jurisdiction in the authority to take action impugned or when the order prejudicial to the petitioner was passed in violation of the principles of natural justice.
15. In Ram and Shyam’s case (supra), the Supreme Court observed thus:
“Before we deal with the larger issue, let, me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of Central Excise v. Jainson Hosiery Industries, rejected the writ petition observing that ‘the petitioner who invokes the extraordinary jurisdiction of the Court under Article 226 of Constitution must have exhausted the normal statutory remedies available to him.’ We remain, unimpressed.
Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate, it does not oust the jurisdiction of the Court. In fact, in the very decision relied upon by the High Court in the State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 = (AIR 1958 SC 86) it is observed ‘that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy.’ It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would He to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.”
16. The Supreme Court in a recent case in Whirlpool Corporation v. Registrar of Trade Mark, Mumbar, , held thus:
“Under Article 226 of Constitution, the High Court, having regarding to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But, the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not consistently held by this Court not to operate as a bar in atleast
three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.”
The Division Bench of Calcutta High Court in Bank of India’s case (supra) did not deal with the disciplinary proceedings; it was dealing with the matters of regularisation of certain workmen. In that regard, a plea was raised that an alternative and effective remedy by raising an industrial dispute was available to the workmen and therefore, they could not have filed the writ petition seeking such a relief. In such circumstances, the Division Bench while agreeing with the general principle that High Court can interfered within a writ proceedings when order of the authority is wholly without jurisdiction. But, the question of violation of the principles of natural justice did not come up for consideration before the Division Bench. Obviously, it was not a case of disciplinary enquiry. Therefore, the decision of the Division Bench has no application to the facts of the resent case. Thus, it has been held that the writ petition is also maintainable against the order passed by the disciplinary authority, under the following circumstances even though appeal is provided under the rules:
(a) If the order impugned is in violation of the fundamental rights.
(b) If the order is wholly without jurisdiction or without any authority of law.
(c) If the order is in gross violation of the principles of natural justice.
17. In the instant case it has to be seen whether there is gross violation of the principles of natural justice so as to invoke the writ jurisdiction approaching this Court under Article 226 of Constitution of India.
18. The Principal grievance placed before this Court by the learned Counsel for the petitioner in this regard is that the petitioner is not supplied with relevant important documents which disabled him from effectively participating in the enquiry and thus it has caused substantial prejudice to the case of the petitioner. Affording reasonable opportunity during the departmental enquiry is one of the cardinal principles of natural justice. Furnishing of relevant documents also forms the procedural requirement. Whether the defence is entitled for copies of the documents relied on by him or whether he is entitled for the copies of the documents which are relied on by the prosecution or whether there any prejudice was caused to the petitioner on account of the non-supply of such documents are all questions which have to be decided with reference to the facts available in each case. There cannot be a straight jacket formula for arriving a conclusion that there is violation of the principles of natural justice in cases of non-supply of documents. But, however, it is now well settled by catena of decisions of the Supreme Court that mere contravention of rules or a mere violation of the principles of natural justice is not sufficient to interdict the departmental proceedings. It must be a substantial, irreconcilable and irretrievable. In the instant case let us consider as to whether the contention raised by the petitioner that failure to supply the documents had resulted in miscarriage of justice. The conduct of the disciplinary enquiry is covered by the provisions of Visakhapatnam Port Trust Employees’ (Classification, Control and
Appeal) Regulations, 1968 (for short “the CCCA Regulations). Regulation 10 deals with the procedure for imposing major penalties. Sub-regulations (11), (12) and (13) of Regulation 10 prescribed the procedure for furnishing the documents in the enquiry. For proper appreciation of the case, the relevant portion in Regulation 10 are extracted below:
“70. Procedure For Imposing Major Penalties:
(1) to (10) xxx xx
(11) The inquiring authority shall, if the employee fails to appear within the specified time or refuses or omits to plead, require the presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days after recording an order that the employee may, for the purpose of preparing this defence:
(i) inspect within 5 days of the order or within such further time not exceeding 5 days as the inquiring authority may allow, the documents specified in the list referred to in sub-regulation (3);
(ii) submit a list of witnesses to be examined on his behalf.
Note:–If the employee applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-regulation (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii) give a notice within 10 days of the order or within such further time not exceeding 10 days as the inquiring
authority may allow, for the discovery or production of any documents which are in the possession of the Board but not mentioned in the list referred to in sub-regulation (3).
Note :–The employee shall indicate the relevance of the documents required by him to be discovered or produced by the Board.
12. The inquiring authority shall, on receipt of, the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the document by such date as may be specified in such requisitions :
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse, to requisition such of the documents as are, in its opinion, not relevant to the case.
13. On receipt of the requisition referred to in sub-regulation (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority:
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the Port’s interest, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the employees and withdraw the requisition made by it for the production or discovery of such documents.”
19. Therefore, these regulations would not only obligate the employer to furnish the documents on which the department
relies to sustain the charge, but it also enjoins upon the employer to furnish the documents required by the delinquent officer in support of his defence. The documents sought to be relied on should be in possession of the department and that they are relevant for the effective defence of the delinquent employee. In the instant case, the charges and the relevancy of documents has to be co-related. The charges framed against the petitioner have already been extracted in the preceding paragraphs. In support of the charges, the department tried to rely on as many as 29 documents in respect of the charge Nos.1, 2 and 10 documents in respect of the charge No.3. They also furnished the list of witnesses to be examined in support of the charges. One Dr. P. Rathna Swamy, Commissioner for Departmental Inquiries, Government of India was appointed as Enquiry Officer and first sitting had taken place on 18-11-1989 at Delhi. In the said proceedings, the Enquiry Officer directed the Presenting Officer to grant inspection of listed documents to the petitioner and also further directed to give photostat copies of the documents to the petitioner and obtain certificate of completion of the inspection of the listed documents. After perusal in the list of documents, petitioner filed an application on 10-12-1997 before the Enquiry Officer to furnish the defence documents and also he furnished the list of defence witnesses. He sought for as many as 30 documents giving the relevancy of documents and also cited 12 defence witnesses. But, however, the petitioner was not supplied with the documents at Sl Nos.4, 12, 13, 17, 22, 23, 27 and 28. He also sought for supply of the statement of the prosecution witnesses recorded by the CBI during the preliminary investigation. To the said effect, a telegram was issued by the petitioner to the Enquiry Officer on 4-2-1998 followed by a detailed letter on the same day. He reiterated the relevancy of the aforesaid documents, the relevant portion is extracted as under:
“As on date I have not received from the Presenting Officer, Document Nos.4, 12, 13, 17, 22, 23, 27 and 28. In this connection, I enclose a copy of my letter No-1 SEC/DSRC/97/16, dated 20-1-1998 for your kind information.
I gave below an item-wise commentary as regards, the relevance of the said eight documents of my case:
4. Listed Document No.3 implies that a selection of eligible candidates called for in CE’s letter dated 24/25-2-1992 had not taken place (the charge-sheet accuses me of having withheld all such selections for my advantage). On the other hand, Defence Document No.4 will reveal the fact that the selection of candidates called for by CE on 24/25-2-1992 had actually been held on 8-7-1992.
12. The complete proceedings showing inter-alia the marks awarded by each Member of Selection Committee is necessary to prove the fact that the selection was not done by me alone but also by two senior officers of other departments and that the selection of the empanelled candidates was unanimous. If this documents is withheld I will not be able to cross-examine adequately the other two members who are appearing as prosecution witnesses.
13. This Document consists of the Deputy Conservator VPT’s Letter dated 18-8-1992 (Office copy dated 15-8-1992) which goes to prove that the Deputy Conservator, VPT himself wanted the list of the panel candidates from the Secretary’s Department and that in this case I did not volunteer to send my list ab initio.
17. Listed Document No.27 is a rejoinder dated the 29-9-1992 issued by me. A copy of the listed document given to me is captioned ” Annexure-I” which
consists of a letter and report sent to Government by the then acting Chairman on the very subject of recruitment of Clerks and which is the subject-matter of the enquiry. I have also indicated that the document is available with “Chairman, VPT (Secretary Department) or Self. Since the original copy of “Annexure-II” was brought by the PO to the PH held on 18-11-1997 I know for certain that Annexure-I and covering letter (kindly allowed by CDI as Defence Documents) are available with him but intentionally withheld in order to weaken and nullify my defence. I pray that this very vital document may please be made available for my defence. In fact, if a reference is made to me in my official capacity, I can supply this document as I have copy of it in my capacity as “Secretary, VPT’.
22. This Defence Document is the “Key” to the questions set in the examination held on 5-8-1992 and in its absence, I will not be able to know as to how certain answers have been specified in that “Key”. No doubt the answers can be coined/calculated even now but what is vital how they were specified in the “Key” which was then available to the team of examiners who valued the 239 and odd papers on 5-8-1992.
23. This document contains certain “Remarks/Observalions/Instructions” of the Chairman VPT referred to in the listed documents Nos.8, 9 and 10 of Charge-III vide Annexure-III viz., “list of documents by which the Articles of charges are proposed to be sustained” (to the charge-sheet). These have not been given to me on the ground that they have to treated as ‘confidential’. Any document referred to in the correspondence given to me as listed document have to be given to me as a matter of natural justice. Confidentiality cannot be claimed to a
documents when it is specifically referred to in another document with reference to which the charge is proposed to be proved. This is a breach of principles of natural justice.
27. Defence Document No.27 is the office copy of the letter dated 26-S-1992 given to me as listed Document No.22 for Charges I and II. This is required by me to make sure whether I have appraised my higher authority before the issue of the letter.
28. Defence Document No.28 (Permitted by the CBI) consists of copies of the statements made by the witnesses during preliminary enquiry. It is known to me that certain important prosecution witnesses who have since retired have made such statements.”
But, however, the defence documents which were sought by the petitioner were not fully furnished and the documents mentioned above are not furnished at all. This finds place in the report of the Enquiry Officer also at paras 5 and 6, which reads thus:
“5. On 12-2-1998, the PO presented five additional listed documents which were the pre-recorded statements he introduced the same through the respective P\V. These five documents were taken on record marking them as Exs.S52 to Ex.S56. The CO objected to take these documents on record as the copies of the pre-recorded statements were the Xerox copies and not the originals. The original copies of these documents were not offered for inspection to the CO and the CO objected their authenticity. Further, the CO objected these were the documents which were requested as one of the additional defence documents at S.No.28. But, until 12-2-1998, the PO did not offer these documents for inspection. The PO examined 11 PWs
and their depositions were taken on record marking as Ex.S4 to S14. 3 witnesses did not turn up and their depositions could not be taken up. The PO made request to adjourn the proceedings to present the witnesses who did not turn up which was not acceded to. The prosecution side of the case was closed.
6. Defence side of the case was taken up. The CO presented 24 defence documents including an additional defence documents and these were taken on record marking as Ex.Dl to D24. The CO submitted for the list of 30 additional documents which were allowed by the undersigned. Out of 29 documents 22 documents were provided and one document which was available with him was presented and the remaining 7 documents were not offered to the CO. Out of 7 documents, there was one document at S.No.28 which were presented as prosecution document without providing them to CO as he demanded that as an additional defence document. The PO had not submitted non-availability for these documents even though these were allowed by the undersigned. The CO presented 7 defence witnesses whose depositions were taken on record marking as DW1 to DW 7. As he did not appear as a witness in his own case a general examination of the CO was conducted by the IO. Proceedings concluded.”
From the report of the Enquiry Officer, the pre-recorded statements of three witnesses were not supplied in advance. In fact, these documents were also sought for by the defence at Sl No.28. But, finally, they were supplied to the petitioner on the same day i.e., on 12-2-1998 while examining the concerned witnesses. With regard to the other seven documents, even though they were in possession of the department they
were not furnished and the department also did not submit non-availability of these documents, even though they were allowed by the Enquiry Officer. Therefore, it is concluded that the charged officer was not furnished with seven documents and three documents were made available to him on the day on which the witnesses were examined. On these admitted set of facts, it has to be considered whether there was any violation of the principles of natural justice causing substantial prejudice to the petitioner. It is not the case of the department at any point of time before the enquiry authority that these documents are not in their possession. It is also not their case that these documents are not relevant to the matter under enquiry. The relevancy was already furnished by the pelitioner and the relevancy was not disputed. The petitioner specifically insisted for supply of key to the answers. One of the charge related to the award of marks with wrong answers and vice versa and for this purpose the petitioner wanted the key to be furnished. (That was admittedly refused). The charge itself was that some questions were wrongly answered and marks to some questions marks were wrongly allotted and in some cases fresh sheets were attached. It is the case of the petitioner that he was only a supervising authority for evaluation and computation of the marks. Whether the question is properly answered or whether the marks were properly allotted or not can be compared with reference to the key approved by the authority and therefore, the key to the questions is a necessary and important documents. It is also in evidence that the answer sheets were not evaluated by the petitioner personally and that the answers were announced by the delinquent officer and other officers of the Visakhapatnam Port Trust have allotted the markes basing on the announcement with regard to the proper answer. This key even though requested by the petitioner was not furnished.
20. Further, in respect of charge No.3, the observations of the chairman in respect of the documents at Sl. Nos.8, 9 and 10 mentioned in support of Charge No.3 of the charge-sheet have not been furnished and claimed the confidentiality. Thus, a narration of events of the description of the documents and their relevancy would indicate that they are the documents required by the defence and more especially refusing to furnish key to the question paper and also furnishing pre-recorded statements of the witnesses on the same day on which they were examined before the CBI are the base documents.
21. In this regard, the parameters of judicial review by the High Courts under Article 226 of Constitution of India over the disciplinary proceedings need not be re-emphasised. It been held by Supreme Court time and again that the judicial review is not the review of the order passed by the disciplinary authority, but, it is the review of the process of the enquiry. The High Court is neither an appellate authority nor has it power to interfere with the findings of the Enquiry Officer if they are supported by evidence. It is also equally well settled that the technical rules of evidence has no application to the disciplinary authorities and this Court has no power to usurp the jurisdiction to re-appreciate the evidence and arrive at its own conclusion. It has to be only ensured that the delinquent officer has received the fair treatment in the hands of the disciplinary authority and that the enquiry was not vitiated for non-observation of the principles of natural justice that there was no denial of reasonable opportunity and that the findings were based on acceptable evidence. Lastly the punishment also can be interfered within exceptional cases when the same was highly unconscionable and disproportionate to the proved misconduct (See: State of Tamil Nadu v. Subrahmanyam (1996 (7) SCC 509), B.C. Chaturvedi v. Union of India , State
of Tamil Nadu v. T.V. Venugopalan , Union of India v. Upendra Singh , Indian Oil Corporation v. Ashok Kwnar Arora and State of Tamil Nadu v. Thiru K.V. Perumal , R.S. Saini v. State of Punjab , Union of India v. B.K. Sreevastav , Managing Director, ECIL v. B. Karunakar , Union Bank of India v. Vishwa Mohan , State Bank of Patiala v. S.K. Sharma (1996 (2) SLR 631) and U.P. State Road Transport Corporation v. Mahesh Kumar Mishra .
22. The Supreme Court has succinctly and elaborately discussed this issue State Bank of Patiala v. S.K. Sharma, 1996 (2) SLR 631, and summarised the cardinal principal with regard to the interference by the High Courts and Tribunals over the disciplinary proceedings and the punishments.
23. These principles have been followed in later judgments of the Supreme Court. They are extracted below:
“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 Court or the Tribunal 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 prejudice including selling 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 prejudice. 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 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)
herein below 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 character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, 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 provision 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 requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/ employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the selling aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Whether 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 Court or the Tribunal should
make a distinction between a total violation of natural justice (rule of audi alteram partern) 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” and “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 aheram partem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alteram pariem) has to be examined from the standpoint of prejudice; 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 againsl 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 overriding 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
Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.”
24. The Supreme Court in Committee of Management, Kisan Degree College v. S.S. Pandey, 1995 (1) SLR 31, observed thus:
“It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent. If he seeks to cross-examine the witnesses examined in proof of the charge he should be given the opportunity to cross-examine him. In case he wants to examine his witness or himself to rebut the charge, that opportunity should be given. In this case, at the earliest, the delinquent sought for inspection of the documents……….
It is stated in the letter written by the Enquiry Officer that inspection of documents would be given at the time of final hearing. That obviously is an erroneous procedure followed by the Enquiry Officer. In the first instance he
should be given the opportunity for
inspection and thereafter conduct the enquiry and then hear the delinquent at the time of conclusion of his enquiry. In this case that procedure conducting the enquiry adopted is clearly in violation of the principles of natural justice.”
25. Applying the principles laid down by the Supreme Court, it has to be considered whether there is any violation of the principles of natural justice on account of the denial of the documents. As observed by me, the documents were specifically directed to be furnished by the Enquiry Officer and they have not been furnished. It is only in the counter filed before this Court, the respondent came with an explanation that they are not relevant for the purpose of the case. This Court does not approve such a stand at this belated stage. The respondent having not taken such a contention when requisition was made and even before the Enquiry Officer, cannot be allowed to plead at this point of time. Even in the counter the respondent did not clarify as how these documents are not relevant. Further, the statements of the witnesses were furnished on 12-2-1992 and the petitioner virtually had to proceed with the enquiry with a great disability. Even though he made protest before the Enquiry Officer and the Enquiry Officer having noted that these documents were directed to be furnished to the petitioner, but not furnished and yet proceeded with the matter for the reasons best known to him . Thus, viewed from any angle, the infraction of sub-rules (11), (12) and (13) of Rule 10 has been established. As observed by the Supreme Court in State Bank of Patiala’s case (supra), that the prejudice must be substantial and that it should result in miscarriage of justice. When once the documents were refused without giving any reasons and the contravention of statutory rules was established it cannot be said that no substantial injury was done to the petitioner. Further furnishing of the
documents on the very same date on which the witnesses were examined is also contrary to the principles laid down by the Supreme Court in State Bank of Patiala’s case (supra). The Supreme Court had observed that the statements must be furnished atleast 3 days in advance so as to cross-examine the witnesses and it is seen from the evidence of these witnesses that the petitioner did not able to cross-examine in respect of the prerecorded statements before the CBI and the reasons are obvious. Mere participation in the enquiry with incurable disability cannot be construed as a fair and voluntary participation and it cannot be presumed that the petitioner acquiesced his right to challenge the injustice meted out to him. When the prejudice is inherent in the proceedings the situation cannot be proclaimed nor protected.
26. Under these circumstances, this Court arrives at the inescapable conclusion that there is gross violation of principles of natural justice and the petitioner was, denied of opportunity of defending his case before the departmental enquiry.
27. In view of my foregoing discussions, I hold that the enquiry is vitiated by non-observance of principles of natural justice and consequently the bar which is sought to be put up by the management cannot withstand the scrutiny of this Court and it is open for the petitioner to challenge the same by filing the writ petition.
28. Accordingly, I hold that the writ petition is maintainable and the enquiry conducted by the management is vitiated by gross violation of principles of natural justice apart from infraction of regulation 10 of the Conduct of Visakhapatnam Port Trust CCCA Regulations, 1968.
29. The learned Counsel for the petitioner also submitted that the disciplinary authority proceeded with a pre-determined notions that the findings of the Enquiry Officer was perverse and unsupported by any evidence
and that the punishment meted out to the petitioner was harsh and unconscionable etc., with reference to the decided cases. So also, the learned senior Counsel made counter submissions, I am not inclined to go into these aspects, as I held that the enquiry was vitiated by infirmities cited supra.
30. Under these circumstances, the impugned orders are set aside, the writ petition is allowed.
31. It is now stated by the learned Counsel for the petitioner that the writ petitioner had attained the superannuation age of 58 years, and hence the question of his reinstatement would not arise. Accordingly, it is directed ‘the writ petitioner is only entitled for the back wages and other benefits which he would have earned till the date of retirement as if he had continued in service.
32. No costs.