PETITIONER: INDRANI BAI Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT21/04/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1994 SCC Supl. (2) 256 JT 1994 (3) 580 1994 SCALE (2)777 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Leave granted.
2. The appellant is the widow of one Narayan Naidu, a
turner in gun carriage factory at Jabalpur. On 15-4-1980,
it was alleged, that he attempted to commit theft of 50 mm
grill. On 17-4-1980, a charge memo was given. On 26-6-
1980, the General Manager appointed the enquiry officer to
conduct an enquiry against him. The delinquent made a
representation to higher authorities that the enquiry
officer was biased against him and requested to appoint any
other impartial person to conduct enquiry against him.
Instead of acceding to the request, the higher authorities
had directed the delinquent on 23-10-1980 to participate in
the enquiry. On 20-11-1980, 24-11-1980 and 30-11-1980,
witnesses were examined ex parte. But, unfortunately, on
14-12-1980, the delinquent was set ex parte as he did not
appear before the enquiry officer. On 5-3-1981, he made
another representation to recall the witnesses already
examined for cross-examination and to give him a further
opportunity to examine himself and his witnesses in
rebuttal. The authorities directed the delinquent, by their
order dated 26-9-1981, to attend the enquiry when fixed and
cooperate with the enquiry officer. Pursuant to this
direction, as found from the record, that the enquiry
officer, instead of reopening the matter and giving him an
opportunity to cross-examine the witnesses already examined
or to examine himself as a witness or his witnesses, by a
letter dated 26-11-1991 has stated thus:
“You were advised to submit a written brief
vide letter No. MWP/ENO/14318/81, dated 27-8-
1981, by 10-9-1981. No reply was received
from your end. However, the Presenting
Officer has presented his written brief, a
copy of which is enclosed.
You are hereby given another opportunity to
submit your written brief before 15-12-1981
failing which, it will be presumed that you
have no written brief to be submitted. The
proceedings of the Court of Enquiry held, have
already been sent to you vide letter No.
MPI/ENO/149318/80, dated 18-1-1981.”
3. Therefore, the delinquent did not submit his written
brief and an order of dismissal from service was passed and
on appeal, it was confirmed.
4. In the meanwhile, the delinquent died on 1-3-1985.His
widow made a representation for payment of gratuity,
pension and otherretiral benefits and also sought
alternative employment for her subsistence. Asregards
payment of gratuity, it has been paid though belatedly,
but the pensionwas not paid on the ground that the
delinquent was dismissed from service. It is said that the
delinquent had since bee; dismissed from service, she is not
eligible for any compassionate appointment. Her OA No. 85
of 1990 was dismissed by Central
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Administrative Tribunal, Jabalpur on 26-4-1990 on the ground
of multiplicity of causes of action. Thus, this appeal by
special leave.
5. While issuing notice to the respondents, we had
directed the respondents to place before us the entire
record. A counter-affidavit has been filed and record also
has been placed before us. In fairness, Shri Kailash
Yasdev, learned counsel for the Union of India, having gone
through the entire record, has placed necessary material
before us. As seen from the narration of the facts, that
after the direction was issued by the Director General in
his letter dated 26-9-1981, the enquiry officer had not
recalled the ex parte order dated 14-12-1980 nor did he
recall the witnesses already examined on 20-9-1981, 24-9-
1981 and 30-9-1981 for cross-examination nor had given him
an opportunity to adduce his evidence in rebuttal. On the
other hand, it is clear from the letter extracted
hereinbefore that despite the direction issued by the higher
authorities, the enquiry officer directed the delinquent to
submit written brief, in other words, he proceeded from the
stage where he last closed the proceedings. That was not
the spirit of the order of’ the Director General. Thus, it
is a clear case of the violation of principles of natural
justice. It is seen that right through, the delinquent
officer had entertained a doubt about the impartiality of
the enquiry to be conducted by the enquiry officer. When he
made a representation at the earliest, requesting to change
the enquiry officer, the authorities should have acceded to
the request and appointed another enquiry officer, other
than the one whose objectivity was doubted. Unfortunately,
that was not done. Even after the Director General had
given an opportunity to the delinquent to participate in the
enquiry, the enquiry officer obviously was expected to
recall the ex parte order and give the delinquent an
opportunity to cross-examine the witnesses already examined
and to adduce his evidence in rebuttal. However, the
enquiry officer did not adopt the said procedure which would
have been just, fair and reasonable.
6. Under these circumstances, it is a clear case that the
delinquent had not been afforded a fair opportunity, much
less a reasonable opportunity to defend himself. That has
resulted in violation of the principles of natural justice
and fair play offending Articles 41, 21 and 311(2) of the
Constitution. The orders of dismissal as confirmed by the
appellate authority are accordingly quashed. The
respondents are directed to grant to the appellant the
pensionary benefits according to rules and also to consider
her case for suitable appointment on any post to which she
may be eligible for rehabilitation, on compassionate ground.
The respondents are further directed to pay the full salary
payable to the deceased delinquent to the appellant from the
date on which he was kept under suspension till date on
which he would have attained superannuation or 28-2-1985,
the preceding date of his death whichever is earlier, with
all consequential benefits after deducting the subsistence
allowance already paid, right from the date of the
suspension order till date of dismissal. The exercise
should be done within three months from the date of the
receipt of the order.
7. The appeal is accordingly allowed No. costs as it is a
legal aid case
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