JUDGMENT
M.F. Saldanha, J.
1. This appeal has been preferred by the Union of India and it is directed against Appeal No. 361 of 1983 decided by the 7th Extra Assistant Judge, Pune. By that order, the Appeal Court had set aside the order passed in Regular Civil Suit No. 1298 of 1982 by the 5th Joint Civil Judge, Senior Division, Pune, Briefly stated, the facts that are material for purpose of the decision of this second appeal are as follows:–
2. The respondent before me Smt. Vasuda A. Kulkarni was at the relevant time an employee of the National Sample Survey Organization at Pune. She was working at that time as a clerk. She had joined the services of the National Sample Survey Organization on 19-3-1959 and was confirmed as a Lower Division Clerk on 20-5-1963. She was promoted to the post of Upper Division Clerk with effect from 28-1-1972. It is alleged that in the year, 1977, the respondent, in the course of her duties, committed certain acts of misconduct. On 4-8-1978, a memo-cum-charge-sheet was issued to the plaintiff accompanied by annexures and five articles of charges and statements of imputations. An enquiry was ordered and defendant No. 3 submitted a report to the effect that the plaintiff was, prima facie, guilty of the charges. The preliminary enquiry was held by defendant No. 3, who himself was working directly under the Assistant Director, Shri Krishnamurthy, who was defendant No. 2 to the initial suit. A grievance was made by the employee, who was the original plaintiff, that this enquiry was biased in so far as the genesis of the whole action was because of certain complaints made by her against defendant No. 2 and that, under these circumstances, there could be no fairness in instituting an enquiry against her at the hands of defendant No. 3, who was working as a direct subordinate of defendant No. 2. The basic challenge was with regard to the infringement of the principles of natural justice in so far as the plaintiff was not given a defence Counsel of her own choice and she also contended that she was not permitted a freehand in cross-examination of the department’s witnesses. The decision in the enquiry went against the plaintiff, who was found guilty of all the five charges. On the basis of this report, defendant No. 2 passed an order of reversion of the plaintiff to the post of Lower Division Clerk for a period of three years. The plaintiff preferred an appeal against the revision order to defendant No. 4, who was the Chief Administrative Officer, but the appeal came to be dismissed. The plaintiff had filed two writ petitions before this Court which came to be rejected, principally, on the ground that the case raised disputed questions of fact. The plaintiff thereupon filed Regular Civil Suit No. 2732 of 1981, but the plaint was returned to her as she had not complied with the requirements of statutory notice under section 80 of the Code of Civil Procedure, 1908. After giving such a notice, the plaintiff re-instituted the proceedings, which were numbered as Regular Civil Suit No. 1289 of 1982. The learned trial Judge recorded evidence heard the parties and dismissed the suit by his judgment dated 8-4-1983. The plaintiff thereafter preferred Civil Appeal No. 361 of 1983, which came to be allowed on 22-2-1984. The learned Appellate Judge upheld the grievance projected by the appellant-plaintiff and recorded the finding that the departmental enquiry proceedings conducted against her are held to be illegal and null and void and the same were, consequently, quashed. By a subsidiary order, it was further declared that the service status of the appellant-plaintiff is not to be affected due to the impugned enquiry and that, consequently, the department was liable to restore the status of the appellant to the position as obtaining immediately prior to the initiation of the impugned departmental enquiry in all respects, including her pay and allowances and other incidental benefits of seniority in normal manner.
3. The respondent-department thereafter filed the present Second Appeal. Shri Behere, learned Counsel appearing on behalf of the appellant, has sought to assail the appellate order on two grounds. In the first instance, it is his contention that the Civil Court had no jurisdiction to scan the enquiry proceedings and to virtually sit in judgment over them. Secondly, he contended that having regard to the specific provisions under Article 311(2) of the Constitution of India, the Civil Court had no jurisdiction to evaluate the evidence recorded in the departmental proceedings. As a corollary to this, however, Shri Behere submitted that even assuming that the Court had the power to examine the matter that it has very correctly and very specifically come to the conclusion that the ground on which the enquiry was challenged, namely, that there was infringement of the principles of natural justice, is downright wrong and baseless and that the Appeal Court was in total error in having interfered with this finding.
4. In support of his first contention, Shri Behere contended that in cases where a public servant has been guilty of misconduct, the jurisdiction to institute departmental proceedings lies exclusively with the department. According to Shri Behere, there are inbuilt safeguards for purposes of ensuring that a departmental enquiry will not be instituted unless there is a, prima facie, case and unless the situation warrants. In this regard, he pointed out that invariably, there is a preliminary investigation within the department wherein the explanation is called for from the errant employee and that it is only after it is disclosed that the facts make out a good enough case for the holding of a departmental enquiry that such disciplinary proceedings are instituted.
5. Shri Behere thereafter submitted that the rules governing the holding of a departmental enquiry prescribe the manner in which it is to be conducted and that the errant employee invariably alleges bias regardless of who the enquiry officer is by contending that the enquiry officer, being part of the department, is bound to record an adverse verdict and that no cognizance of such accusations should be taken as they are mechanically made and are devoid of substance. Shri Behere also contended that the requisite procedure prescribed in this case has been properly followed in so far as a preliminary enquiry was held. Thereafter a regular disciplinary enquiry was instituted because it was disclosed that the facts warrant such a proceeding and has further contended that the plaintiff was given a full opportunity to defend herself, to cross-examine the witnesses and that the findings recorded against her are fully substantiated. In such circumstances, Shri Behere submits that the law provides for an appeal at the departmental level and once the appeal has failed that it is not open to the employee to re-open the entire case before a Civil Court and ask the Civil Court to virtually sit in judgment over the record of the departmental proceedings. I need to, however, record that though it was the basic contention of Shri Behere that the Civil Court has no jurisdiction to entertain such a suit, which is virtually a review, he confines his submission to a watered down version by contending that this Court must hold that a Civil Court ought not to and should not entertain such a suit. In effect, he was contending that there would be no end to the proceedings if the Civil Court interfere in these matters and that, therefore, it should refuse to do so. To that extent, he contended that the order passed by the Civil Court quashing the enquiry proceedings was improper.
6. The more substantial line of attack canvassed by Shri Behere was that in cases of misconduct by a public servant, Article 311 of the Constitution of India provides for the holding of a departmental enquiry into the charges and this was a special procedure set up in the forum for holding of such an enquiry and an appeal, if necessary, against any adverse orders. It is Shri Behere’s contention that a challenge to the appellate order, even if adverse, may at the very highest be entertained under the extraordinary jurisdiction exercised by the High Court under Article 226 of the Constitution, but that a suit against the same is completely barred. Shri Behere submitted that Article 311 of the Constitution is silent with regard to the final outcome of those proceedings. The rules framed by the respective departments do, in terms, prescribe the only redressal open to an employee in the case of an adverse order, namely, by way of an appeal at the departmental level and he contends that by implication that jurisdiction cannot be extended to cover that of a Civil Court. In other words, he submits that there cannot be a second appeal to a Civil Court.
7. As against this position, Shri Ketkar has advanced the submission that there is no substance whatsoever in the aforesaid points of law because it is always open to an aggrieved employee who as a citizen of India has every right to approach a judicial authority in the event of the passing of an adverse order which is based on no evidence or an order that is passed in flagrant breach of the principles of natural justice or in cases where an enquiry bristles with mala fides. Shri Ketkar advanced the submission that his colleague was unable to point out any definite bar either under Article 311 of the Constitution or under the Code of Civil Procedure to the Civil Court taking cognizance of a proceeding of this type. On the other hand, Shri Ketkar relied on the order passed by the Division Bench of this Court (Sawant and Bharucha, JJ.), on 7-12-1981 when the petitioner challenged the adverse orders passed against her and the department had taken up the plea that disputed questions of fact are involved. The Division Bench at that time had passed the following order.
“The remedy to file a writ petition under Article 226 is not a proper remedy in such cases. Hence the petition is rejected.”
Quite apart from the aforesaid observations of the Division Bench, Shri Ketkar submits that it would be virtually absurd to argue that an aggrieved employee, particularly in the present circumstances, is left with no legal remedy. He demonstrates the present position whereby he contends that within the framework in which the plaintiff was placed that even the appellate remedy was virtually an appeal from ceasar to ceasar and was, therefore, virtually useless. He submits that there can be no better example than the present case to indicate how necessary it is for a legal avenue to be kept open in such situations.
8. Before dealing with these aspects of the matter that do require adjudication, it would be necessary for me to observe that the time has now come when the Court will have to insist upon the public authorities culling out useless and worthless enquiries and disciplinary proceedings. This Court had occasion to observe sometime back while dealing with a prosecution against a public servant under the Prevention of Corruption Act wherein the allegation was so trivial that no sanction for prosecution ought to have been awarded; that it is essential to take cognizance of the consequences of mechanically proceeding in the wrong direction. The Supreme Court and this Court have repeatedly castigated the Government and Public Authorities for litigating and, more importantly, for filing appeals in matters where one should not normally do so, but the time has now come to curb the genesis of all such litigation.
9. We now require to go to the other end of the line and prescribes that the starting point of such litigation requires to be curbed. For this purpose, though the chargesheet has been convincingly worded to give it the garb of seriousness, the grave men of the misconduct alleged against the poor lady centers around the fact that on two particular dates she is supposed to have charged something like Rs. 1-20 and Rs. 4/- for a rickshaw-fare and taxi-fare when, in fact, she had not used the particular modes of conveyance. Quite apart from the amount involved, the utter futility of magnifying these incidents into proportions whereby they would justify a departmental enquiry have resulted in abnormal waste of public time and public money, for one cannot lose sight of the fact that the drawing up of chargesheets, holding of enquiries and hearing of appeals are all functions which consume the time of public servants, who are otherwise supposed to attend to their public duties. When misconduct proceedings of this type are commenced, apart from the gross waste of public time and money as far as the department is concerned, invariably the employee is suspended which causes unnecessary trauma and torture to the employee and the family, the employee is required to be paid subsistence allowance without working and at the end of the lengthy legal battles within the department and thereafter in the courts when the proceedings come to be quashed, as is inevitable if the charges as flimsy as they are in the present case, it becomes necessary for the department to compensate the employee for work that has not been done. The end result of this exercise ends in futility and an abnormal loss to the exchequer. It is, therefore, absolutely essential that the Government and the Public Organizations specifically issue immediate directions that a careful scrutiny and evaluation be done with regard to the nature of the charges, more particularly their gravity and, above all, whether the supportive evidence is strong enough to sustain them, in the absence of which no such proceedings should be commenced so that the courts can be spared from this volume of “useless” litigation.
10. Coming to the two heads of challenge advanced by Shri Behere, I prefer to deal with them collectively. Article 311 of the Constitution of India does provide for disciplinary proceedings at a departmental level, but it does not prescribe any bar as far as the jurisdiction of a Civil Court is concerned. It is true that a Civil Court or, for that matter, the High Court acting in exercise of its extraordinary powers will not normally interfere with the jurisdiction of the disciplinary proceedings unless gross unfairness or illegality is apparent, but it is equally necessary to lay down that there is no bar to the exercise of jurisdiction with regard to this area if the situation justifies it. If there is blatant violation of the rules of natural justice, it is no argument for the department to contend that the aggrieved employee must wait until the conclusion of the proceedings, for in appropriate cases such as where documents are not supplied or a party’s defence is being fettered appropriate corrective action through a judicial order at the initial stage of the proceedings is certainly most appropriate.
11. More importantly, however, the thrust of the argument is towards contending that the disciplinary proceedings must be allowed to culminate with the appellate order and that there should be no judicial review in respect of such departmental disciplinary action. Shri Kelkar vehemently opposed the argument, and rightly so to my mind, because he pointed out that even if one were to scrutinize the facts of the present case, it is apparent that personal friction, animosity and bias were the genesis in the action and he submits that if the order is arbitrary or malicious or if the punishments were vicious and unduly heavy that it would be absurd and impossible for the department to contend that a judicial forum is precluded from reviewing that decision. The principle of judicial review is no respecter of persons, personalities, bodies or institutions; high or low, and prescribes that if there is breach of the law that it shall always be open to an aggrieved person to move a Court for justice. It is in exercise of that principle that it will always be open to an aggrieved employee to move a Court in appropriate cases for a review. It logically follows that in such instances, it must be open and, in fact is open to the Court to scrutinize the proceedings of the departmental enquiry. Where it is only on a point of law, a Writ Court would, undoubtedly, check the correctness of the order passed, but where there are disputed questions of fact, as in the present case, it may be necessary for a Civil Court to re-examine the entire dispute. The principle of review is not necessarily equated with an appeal, though in some slight areas it may be that the jurisdiction may be overlapping, but the fact still remains that one would have to read the jurisdiction may be overlapping, but the fact still remains that one would have to read the jurisdiction conferred by Article 311 of the Constitution on a department as being subordinate to that of a judicial forum. There can be no two opinions about the fact that howsoever well qualified and careful the authorities may be that there may still be angles and areas in which they have gone wrong and on important issues, such as these involving the career and future of the employee, the departmental proceedings shall always be subordinate to the final decision of a Court. This is not to be understood as meaning that in all cases where an adverse order is passed departmentally that the party is entitled to thereafter drag it through the long process of judicial review, but it only keeps the avenue open in those of the cases where there has been a gross miscarriage of justice for the employee to seek redressal through the Court.
12. Coming to the merits of the present proceedings, it is true that the learned trial Judge, after assessing the material before him, came to the conclusion that the departmental proceedings were validly conducted and that not only the charges were proved but that the punishment of revision awarded to the respondent-employee was justified. It must be said to the credit of the learned Appellate Judge that having regard to the consequences to the employee in this case that he went through the exercise of a complete reconsideration of all the material that was placed before him and came to the conclusion that barring two minor aspects, which are insignificant, that none of the charges had been established. I do not need to reproduce in detail the material that has been set out in the appellate judgment which is a well-considered one and which to my mind is virtually faultless, but having regard to the fact that Shri Behere had seriously contested the matter even on merits, it was necessary for me to ascertain by looking at the record, out of a sense of fairness, as to whether or not these findings were justified. Frankly, this was totally outside the scope of a Second Appeal because the stage for appreciation of evidence has virtually concluded at the level of the first Appellate Court. Shri Behere, in his enthusiasm, tried to assail the appellate judgment in this regard, but has failed in pointing out any flaws.
13. I have already dealt with the aspect of trivialities of the charges and in my considered view this was not a case in which the rigours of a disciplinary enquiry ought to have been visited upon the lady employee in question. More importantly, one needs to deal with an angle which appears to have escaped both the courts below, namely, the manner in which the enquiry was conducted. Towards this end, Shri Ketkar has advanced a serious grievance, which is to the effect that defendant No. 3 before me, who was the Enquiry Officer, was the direct subordinate of the Assistant Director, who is defendant No. 2. In the present instance, a problem had cropped up between the lady employee and defendant No. 2 and in such a situation where he had directed a preliminary enquiry and thereafter come to the conclusion inevitably and understandably that the disciplinary proceedings should be commenced, the least that one would have expected would have been that some person other than the officer who held the preliminary enquiry and some one other than the one directly subordinate to defendant No. 2 ought to have been appointed as the Enquiry Officer. One can never loose sight of the fact that where an Enquiry Officer happens to be working under and directly subordinate to the authority who has directed the holding of the enquiry that there would normally be only one result at the end of such an enquiry. In such situations, to my mind, a Court will have to intervene in so far as the entire enquiry is reduced to an empty formality, the verdict being quite predictable even before the commencement. Under these circumstances, it is necessary, if the enquiry has to be fair, that an independent and unbiased officer should hold such an enquiry. In this case, the employee had been objecting to each of the appointments, but such objections were mechanically overruled. The rules of natural justice, which prescribe that a party should be given all the material on which the charges are based and should be given a fair opportunity of defending itself, implicitly require that the party should be provided with a forum that is unbiased. In the present case, there is a clear and definite infringement of the third requirement. I also need to confirm the findings of the learned Appellate Judge, who has held that there has been infringement of the rules of natural justice to the extent that the petitioner was not afforded a fair opportunity of cross-examining the witnesses and of defending herself in the course of the enquiry proceedings.
14. On an overall view of the record of the present case and on a consideration of the law applicable to it, I find that no interference is called for with the appellate order. It is in these circumstances that the appeal fails and stands dismissed.
15. As a necessary consequence, the status quo ante is restored and the respondent-employee is restored to the position in which she was placed prior to the commencement of the enquiry. The order of punishment awarded to her is quashed and set aside and the respondent-employee would be entitled to all consequential benefits, including the promotions that she would normally have received in the absence of the enquiry proceedings and the order imposing punishment on her. The Department shall ensure that necessary corrective action in this regard is taken within a period of 60 days from to-day. Similarly, the Department shall calculate and pay to the respondent-employee the arrears that she would be entitled to by virtue of the aforesaid changes within the said period of 60 days.
16. Shri Ketkar advanced a strong plea that exemplary costs should be awarded to his client. He stated that his client is a lady and that she was working as a clerk when the action was commenced against her. He stated that having regard to the vindictiveness and the militancy of the Department that his client was required to approach this Court on two occasions by filing two writ petitions, which were vehemently contested by the Department, and that she had to thereafter to contest the legal proceedings before the trial Court, the Appellate Court and before this Court, all of which have been going on for the last 17 years. It is in these circumstances that he has prayed that costs be quantified in order to offset at least the financial expenditure that the respondent-employee was subjected to as a result of this litigation. I have already held that the initiation of this enquiry was thoroughly unjustified and the order of the Appellate Court has already been confirmed whereby the proceedings have been quashed. Under these circumstances, and more importantly since it was the Department who insisted on a third round of litigation before the High Court, it would be necessary on the one hand to compensate the petitioner by way of costs, and secondly, to also award exemplary costs against the Department for having subjected her to all these 17 years of a litigation in a proceeding that, to my mind, was virtually stillborn. Having regard to these considerations the costs are quantified at Rs. 15,000. The appellants are directed to pay the said costs to the respondent-employee within a period of 60 days along with the other amounts that she is entitled to receive.
17. It is made clear that in the event of the Department deciding to carry the matter higher, the payment of the aforesaid amount shall be condition precedent to any further proceedings and, furthermore, that the Department shall give three weeks’ written notice to the respondent-employee before applying for any further orders.
18. The appeal accordingly fails and the same stands dismissed with costs as quantified above. The Bank Guarantee that has been furnished by the respondent-employee to stand revoked forthwith. Certified copy expedited.