JUDGMENT
L. Mohapatra, J.
1. Plaintiff is the appellant against, a confirming judgment.
2. Case of the plaintiff is that he joined as L.D.Clerk on 21.6.1965 in the Court of the Special Railway Magistrate, Cuttack. On 5.6.1969 the Special Railway Magistrate Court was shifted from Cuttack to Khurda Road and accordingly the appellant also being attached to the Court worked at Khurda. In the year 1978 the C.J.M., Puri in course of inspection of some records found certain irregularities in maintenance of the records relating to deposits and accounts. Nine years thereafter, a departmental proceeding was initiated against the appellant and Sri R.N. Chatterji, the then C.J.M., Puri was appointed as the Enquiring Officer by the District Judge, Puri. On completion of enquiry the Enquiring Officer found the plaintiff-appellant guilty of five charges out of six and submitted report to the District Judge. Thereafter, the plaintiff was called upon to show-cause as to why major penalty shall not be imposed on him and without awaiting for the show- cause the date was fixed to 15.4.1982 for personal hearing. After such personal hearing the District; Judge, Puri passed an order for retirement of plaintiff-appellant compulsorily which was received by him on 2.3.1983. The appeal preferred by the plaintiff before the Registrar of this Court having been rejected on 1.4.1994, a writ application was filed. Said writ application was withdrawn and the suit was filed for declaration that the plaintiff is continuing in service till date of superannuation with all financial benefits and for declaration that the orders passed by the District Judge and the Registrar of this Court are illegal, void and inoperative.
3. Order of compulsory retirement was challenged by the plaintiff on the grounds that during the time of enquiry the plaintiff had filed a petition for time to submit explanation but the said petition was rejected and the Enquiring Officer proceeded with the enquiry without giving an opportunity to the plaintiff to file same, there is not evidence on record to support the findings of the Enquiring Officer, the plaintiff was not allowed to file his show-cause pursuant to the order of the District Judge, Puri after submission of enquiry report and a copy of the enquiry report was not given to the plaintiff before the District Judge, Puri issued notice to file show-cause as to why major penalty shall not be imposed.
4. Defendant No. 2 filed his written statement stating that in view of the provisions contained in the Administrative Tribunals Act, 1985 the Civil Court had no jurisdiction to try suit relating to service matters. It is stated in the written statement of defendant No. 2 that original charges framed against the plaintiff on 30.1.78 were served on 31.1.78 directing him to file his show- cause by 24.2.1978. Thus the plaintiff had sufficient time and opportunity to file show-cause by 30.10.79 when the charges were amended but he did not chose to file the same. After the amendment of the charges, he was again given time till 11.1.80 to file show-cause. Since the plaintiff failed to file show-cause, the enquiry had to commence and it cannot be said that the plaintiff had not been afforded opportunity of filing show-cause to the charges. It is also stated in the written statement that the plaintiff was allowed to engage a lawyer to cross-examine the three witnesses out of four examined on behalf of the employer and declined to cross-examine the witness No. 4. Further case of the defendant No. 2 is that after submission of the enquiry report the District Judge, Puri while agreeing with the findings of the Enquiring Officer issued second show-cause notice to the plaintiff on 15.3.1982. The plaintiff also appeared personally before the District Judge on 15.4.11982 and time was also granted to him till 2.1.1983 to file his show-cause. Since the plaintiff did not file show-cause the impugned order of compulsory retirement was passed by the learned District Judge. It is also contended that there is no violation of any statutory provision calling for interference of the Civil Court.
5. On the pleading of the parties the learned Civil Judge (Junior Division), 1st Court, Cuttack framed seven issues. While answering issue No. 3 relating to jurisdiction of the Court, learned Civil Judge held the suit to be maintainable. While answering issue No. 4 with regard to violation of statutory provisions of law and the issue No. 5 relating to legality of order of compulsory retirement, the learned Civil Judge held that the departmental proceeding had been held in compliance of the statutory provisions and not in violation of the same and the plaintiff having been found guilty of the five charges out of six charges, the order of compulsory retirement was justified and on the above finding the learned Civil Judge dismissed the suit. The appeal filed by the plaintiff before the 2nd Addl. Civil Judge (Senior Division). Cuttack was also dismissed on the same findings.
6. This Court at the time of admission formulated the following substantial questions of law for adjudication at the time of hearing.
“(1) Whether the instant case of ‘no evidence’ does not go to the root of the jurisdiction and the conduct of the departmental trial and vitiates the result and thus makes the Departmental Proceeding No. 19/78 null and void, thereby entitling the appellant to the reliefs asked for in the suit ?
(2) When the defendants, in possession of best evidence which could throw light on the issue in controversy, withheld it, whether an adverse inference is not to be drawn against them notwithstanding, even assuming that onus of proof does not lie on them, they cannot rely on the abstract doctrines of onus of proof or on the fact that they were not called upon to produce ?
(3) Whether the appellant, in the circumstances, was not highly prejudiced in the matter of his defence in the enquiry and thereby whether he was denied reasonable opportunity to defend himself in the departmental proceeding as also in the suit ?”
7. Sri S. K. Mohanty, learned counsel appearing for the plaintiff-appellant referring to the provisions contained in Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 submitted that there was violation of statutory provision, i.e. Rule 15 (10)(ii) and that before imposing any major penalty a copy of the enquiry report was required to be served on the delinquent officer. He further submitted that in course of hearing; of the suit, a petition was filed for production of the records of the disciplinary proceeding and in spite of orders passed by the learned Civil Judge records were not produced and had the records been produced the same would have disclosed the illegality committed by the Enquiring Officer in course of enquiry. He also submitted that though written statement was filed by the defendant No. 2 only, no witnesses were examined on behalf of the department and the pleadings in the written statement were taken as evidence by both the Courts below while dismissing the suit. Learned counsel for the State, on the other hand, submitted that adequate opportunity was given to the plaintiff as is evident from the written statement in defending his case and having failed to avail those opportunities in filing a reply to the charges and in filing show-cause to the second show-cause notice issued by the learned District Judge, plaintiff cannot make a grievance that he had not been afforded reasonable opportunity to defend himself. Findings of both the Courts below would clearly indicate that adequate opportunities were afforded to the plaintiff for defending his case and in fact he had engaged a lawyer to defend him and therefore such grievance of the plaintiff has been rightly turned down by both the Courts below.
8. So far as jurisdiction of the Civil Court in entertaining the suit is concerned, there is no dispute at the Bar that the Court had jurisdiction to entertain the suit. In the case of Raja Ram Kumar Bhargava v. Union of India. AIR 1988 SC 752. the Apex Court with regard to the jurisdiction of the Civil Court in entertaining the suit expressed as follows :
“Generally speaking, the broad guiding considerations for determining whether Civil Court jurisdiction is excluded are that whenever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is extended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the Civil Courts jurisdiction impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the Civil Court’s jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.”
In the case of Ramendra Kishore Biswas v. State of Tripura and Ors.. AIR 199 SC 294, the Apex Court held that when the Service Rules neither expressly nor by implication have taken away jurisdiction of Civil Court to deal with service matter, a suit could be entertained. In paras 5 an,d 6 of the judgment, the Apex Court observed as follows :
“xxx The learned Single Judge readily accepted the ouster of jurisdiction of Civil Courts to deal with service matters without proper consideration of the matter. Indeed, it is appropriate to relegate a person to exhaust Departmental remedies when he approaches the Court without exhausting Departmental remedies under the Service Rules but to hold that the Civil Court had no jurisdiction while hearing a second appeal, after the matter has been litigated in Civil Courts for more than five years was, to say the least, not proper. The learned Single Judge ought to have decided the case on its own merits and not made as shortcut of it. The appellant could not have been non-suited on the ground that he had failed to take recourse to proceedings under the CCS. (C.C and A) Rules, 1965 against the order of dismissal.”
“xxx Service Rules, neither expressly nor by implication have taken away the jurisdiction of the Civil Courts to deal with service matter. The opinion of the learned Single Judge does violence both to the Code of Civil Procedure, the Specific Relief Act and the Service Rules. As a matter of fact, it appears to us that the learned Single Judge failed to exercise the jurisdiction vested in him while non-suiting the appellant. It, therefore, appears appropriate to us to allow this appeal, set aside the order of the learned Single Judge and remit the matter to the High Court for a fresh decision of the regular second appeal and the cross-objections on their own merits. The appeal, therefore, succeeds and is allowed. The RSA and cross-objections are remitted to the High Court for fresh disposal on merits in accordance with law.”
In view of the above decisions also there cannot be any dispute that the suit is maintainable.
Coming to the question of scope of interference in such suit, I think it proper to refer to the judgment of the Apex Court in the case of R.C. Sharma v. Union of India and Ors. reported in AJR 1976 SC 2037. The Apex Court in the aforesaid decision while considering the scope of interference by Civil Court in a suit observed as follows :
“A suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Government servant even if these are erroneous. A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of the jurisdiction and the conduct, of the departmental trial and vitiates the result. It is only if the departmental proceeding is null and void that a plaintiff in such a suit could obtain the reliefs he had asked for. We are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings.”
The learned Addl. Standing Counsel referring to a decision of the Apex Court in the case of Executive Committee of U.P. State Warehousing Corporation v. Chandra Kiran Tyagi reported in AIR 1970 SC 1244 submitted that the plaintiff in such a suit can only seek for damages and Under Section 21(b) of the specific Relief Act the contract of personal service cannot be enforced. On perusal of the judgment in the aforesaid case, I am of the view of that the learned Addl. Standing Counsel has misconceived the law laid down by the Apex Court m the said case. While dealing with Section 21(b) of the Specific Relief Act the Apex Court observed that normally a contract of personal service will not be enforced by an order for specific performance. When a statutory status is given to an employees and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he continues to be in service, as it will not then be a mere case of a master terminating the services of a servant. The exceptions to the normal rule that no declaration to enforce a contract of personal service will be granted are : (1) a public servant who has been dismissed from service in contravention of Article 311; (2) reinstatement of a dismissed worker under Industrial Law or by Labour or Industrial Tribunals; and (3) a statutory body when it has acted in breach of a mandatory obligation imposed by statute. The aforesaid decision rather supports the contention of the learned counsel for the appellant that the Court in such case can grant relief of declaration.
Keeping in mind the aforesaid guidelines settled by the Apex Court, now it is required to be examined as to whether the dispute raised by the plaintiff is of such a nature that it goes to the root of the jurisdiction and conduct of the departmental trial and whether the departmental proceeding is null and void. Learned counsel Sri Mohanty appearing for the appellant submitted that the plaintiff was not given any opportunity of filing show cause before the Enquiring Officer. To prove such allegations even though records were called for, the same was never produced before the Court. According to Sri Mohanty due to non-production of the departmental proceeding records adverse inference should be drawn and the plaintiff’s allegation that he had not been given reasonable opportunity of filing written statement of defence before the Enquiring Officer should be accepted. Admittedly, during pendency of the suit an application was filed by the plaintiff for production of disciplinary proceeding records under Order 11, Rule 14, C.P.C. Learned Munsif, 1st Court, Cuttack by order dated 26.4.93 directed the defendant No. 2 to cause production of the documents of departmental proceeding by 25.6.93. But from the subsequent order it appears that the proceeding records were never produced before the Court. Another order was also passed again on 19,1.96 for production of the said record, but the defendant No. 2 never produced the same. In absence of the departmental proceeding record, to appreciate the question raised, the evidence of the plaintiff himself is to be looked into. Plaintiff in his deposition has submitted that the charges were framed initially on 30.1.1978 and he was served with a copy of the same, but without copy of any statement basing on which such charge had been framed. He was asked to submit his written statement of defence by 24.2.1978. He could not submit the statement of defence and time was allowed till 30.3.1978. Thereafter, again time was prayed for by the plaintiff and time was granted till 11.1.1980. On 11.1.1980 the plaintiff again prayed for time which was rejected and the proceeding was taken up. From the said evidence of the plaintiff himself it appears that he had been allowed time for about two years for filing his written statement of defence but failed to do so. Therefore, accepting evidence of plaintiff himself, I hold that the plaintiff had been given reasonable opportunity of filing his written statement of defence and in spite of several adjournments between 24.2.1978 and 11.1.1980 he failed to submit his statement of defence.
9. The second question pointed by Sri Mohanty is that the plaintiff was not given reasonable opportunity of cross-examining witnesses. From the deposition of the plaintiff himself, it appears that he had been allowed to engage an advocate to defend himself in the disciplinary proceeding. In para 22 of his deposition he has admitted that he had engaged a lawyer for defending him in the proceeding and he cannot say if his lawyer has cross-examined the witnesses 1, 2, 3 and 4.Since the plaintiff himself is unaware of the fact as to whether his lawyer cross-examined four witnesses or not, it is difficult to accept his allegation that no opportunity was given to him for cross-examining those witnesses.
10. The third and most important question raised by the learned counsel for the appellant is that after submission of the enquiry report the plaintiff was to submit his show-cause as to why major penalty shall not be imposed on him. Before the impugned order was passed, copy of the enquiry report was not given to him, as a result of which he could not file any reply to the second show cause notice. Shri Mohanty referring to Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 submitted that there has been an infraction of the statutory provisions by not giving a copy of the enquiry report to the plaintiff. Under Rule 15 (10)(ii) of the aforesaid rules the order passed by the disciplinary proceeding shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority. Plaintiff in his evidence has specifically stated that a copy of the enquiry report was not given to him at the time when he was directed to submit his reply to the second show cause notice. Whether supply of enquiry report is mandatory or not, reference may be made to some of the following decisions of the Apex Court.
In the case of Union of India and Ors. v. Mohd. Ramzan Khan, reported in AIR 1991 SC 471 the Apex Court laid down the following with regard to entitlement of delinquent officer to receive a copy of the enquiry report and the effect of non-service of copy of the same in a disciplinary proceeding.
“Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the inquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done by the 42nd amendment which could be taken as keeping natural justice out of the proceedings and the applicability of the rules of natural justice to such an inquiry is not affected by the 42nd amendment. Therefore, supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.”
A Constitution Bench of the Apex Court in the case of Managing Director, ECU, Hyderabad, etc. etc, v. B. Karunakar, etc. etc. reported in AIR 1994 SC 1074 laid down the following :
“Although an account of the 42hd Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the Inquiry Officer’s report alongwith the notice to make representation against the penalty, whenever the Inquiry Officer is other than the disciplinary authority and the report of the Inquiry Officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non-furnishing of the report amounts to a violation of the rules of natural justice. This was the law laid down in Mohd. Ramzan Khan’s case, AIR 1991 SC 471 and it is appropriate that the said law should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him.”
The Apex Court further observed as follows with regard to the effect of non-furnishing of copy of inquiry report to the delinquent:
“When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him graVely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and. the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.
Hence, in all cases where the Inquiry Officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/ Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial minds to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it would 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 liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position of law.”
So far as the present case is concerned, in spite of two orders passed by the learned Civil Judge the Departmental Proceeding records were not produced before the Court. Due to non-production of the Departmental proceeding records it could not have been possible on the part of the learned Civil Judge to supply a copy of the enquiry report to the plaintiff in order to find out as to whether non-supply of the same has affected ultimate decision taken by the disciplinary authority or not. Before this Court also the learned counsel for the State has not produced the records and therefore, in absence of the records it has to be held that had a copy of the enquiry report been supplied to the plaintiff, he could have pointed such defects in the proceeding that it could not have been possible on the part of the disciplinary authority to accept the report and impose penalty of compulsory retirement, I am of the view that non-supply of the copy of the enquiry report has caused serious prejudice to the plaintiff-appellant.
11. Another statutory infraction has been pointed by the learned counsel for the plaintiff stating that alongwith charge sheet copies of the statement on the basis of which charges were framed had not been supplied to the plaintiff and in absence of which it could not have been possible on the part of the plaintiff to file proper reply to the show cause notice. Again, in the this connection, reference may be made to Rule 1.5 (2) of the CCA. Rules. The statute specifically provides that the disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is to be held. Such charges, together with a statement pf the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit his written statement of defence within the time specified. In this connection, reference may be made to a decision of the Apex Court in case of State of Uttar Pradesh v. Mohd. Sharif, reported in AIR 1982 SC 937. In the aforesaid decision in a departmental proceeding certain charges were framed against a Head Constable. Copy of the charge sheet was served on the delinquent officer but the statement of witnesses recorded during preliminary enquiry were not given to him. Under the above circumstances, the Apex Court held that the delinquent was denied reasonable opportunity and held the dismissal order to be illegal. Therefore, there has been another infraction of statutory provision by not supplying statement of allegations on the basis of which charges were framed alongwith copy of the charge sheet.
12. In view of the discussions made above, I allow the appeal, set aside the judgment and decree passed by the Courts below and declare the order passed by the defendant No. 2 and the order passed by the appellate authority, defendant No. 3. are null and void, inoperative and further declare that the plaintiff shall be deemed to be continuing in service till his superannuation, if he is superannuated in the meantime.