JUDGMENT
P.S. Mishra, C.J.
1. The appellant in the two writ appeals, who is also the petitioner in Writ Petition No. 11481 of 1994; has moved this Court under Article 226 of the Constitution of India for reliefs, inter alia, for setting aside the orders of imposition of punishment and for quashing the order of transfer, as party-in-person. Writ appeal No. 349 of 1995 has arisen from a proceeding under which the disciplinary authority has found him guilty of misconduct and punished him by withholding three increments of pay without cumulative effect. His appeal has been dismissed and a learned single Judge has declined to interfere with the said order. Writ Appeal No. 964 of 1995 has arisen from a proceeding under which he has been transferred from Hyderabad to Roopnarayanpur unit and his petition under Article 226 of the Constitution of India questioning the said order of transfer, has been dismissed. Writ Petition No. 11481 of 1994 is filed invoking this Court’s prerogative jurisdiction questioning the proceeding under which he has been punished once again for the alleged misconduct.
2. We do not propose, in Writ Appeal No. 349 of 1995 and Writ petition No. 11481 of 1994, to enter into the nature of the allegations or the findings recorded in course of the enquiry against the appellant-petitioner. We, however, take notice of the fact that after service of memo of charges, the appellant – petitioner was subjected to an enquiry for major punishment and after the enquiry the disciplinary, authority has decided to impose the minor punishment of withholding of increments. Employer of the appellant-petitioner i.e., Hindustan Cables Limited, is a State under Article 12 of the Constitution of India and the appellant – petitioner, though not entitled to the protection under Article 311 of the Constitution of India, is protected under Articles 14, 16 and 21 of the Constitution of India, which fall in Part III thereof. There is nothing on the record to show that after the conclusion of the enquiry and before any decision was taken to punish the appellant – petitioner, a copy of the enquiry report was served upon him by the disciplinary authority and his explanations, if any, were obtained before further proceedings were taken up. It is a case in which the disciplinary authority has acted upon the report of the Enquiry Officer and on the basis of the materials collected in course of the enquiry, but no opportunity has been afforded to the appellant-petitioner to place before the disciplinary authority materials to explain the findings of the Enquiry Officer or to show to the disciplinary authority how the enquiry against him was vitiated.
3. A Constitution Bench of the Supreme Court in the case of Managing Director, ECIL v. B. Karunakar, (1994-I-LLJ-162) has held that the denial of the report of the Enquiry Officer to the delinquent employee, is a denial of reasonable opportunity and a breach of the principles of natural justice and, “the delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject”. Considering, however, what is the effect on the order of punishment, when the report of the Enquiry Officer is not furnished to the employee, and what relief should be granted to him in such a case, the Supreme Court has said that the answer to this question has to be relative to the punishment awarded and observed, “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 backwages in all cases is to reduce the rules of justice to a mechanical ritual.” The Supreme Court has then proceeded to observe at P. 178.
“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 “unnawral expansion of natural justice” which in itself is antithetical to justice”.
The Supreme Court, in such a situation, has pointed out that –
(1) 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.
(2) If after hearing the parties, the Court/Tribunal comes to the 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.
(3) The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunal which will apply their judicial mind to the question and will 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.
(4) It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case it should set aside the order of punishment.
(5) Where after following the above procedure, the Courts/Tribunals set 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 enquiry by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report.
(6) The question whether the employee would be entitled to the backwages 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.
(7) If the employee succeeds in the fresh enquiry, 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.
(8) The reinstatement made as a result of the setting aside of the enquiry 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 in law.
4. Relying upon the above observations of the Supreme Court, in the order impugned in Writ Appeal No. 349 of 1995 the learned single Judge has said :
“The learned counsel appearing for the petitioner took me through the findings of the Enquiry Officer and the charge framed. On a consideration of the Enquiry Officer’s report. I am of the view that non-furnishing of the Enquiry Officer’s report has not caused any difference to the findings arrived at by the disciplinary authority and punishment imposed on the petitioner”.
5. We have no hesitation in holding that the learned single Judge has fallen in error and has taken the above observations of the Supreme Court, without taking notice of the fact the Supreme Court illustrated how the problem should be tackled when the employee is not furnished with a copy of the report of the Enquiry Officer, and how this should be viewed in the case of an employee who is dismissed or removed from service. The Supreme Court has categorically said that by ordering for the service of a copy of the report of the Enquiry Officer upon the delinquent employee, the Court should give him an opportunity to show how his case was prejudiced because of the non-supply of the report. Assuming that even in a case of imposition of a minor penalty as a consequence of enquiry, it is open to see whether any prejudice has been caused to the employee by the report of the Enquiry Officer, which has not been furnished to him, before coming to the above conclusion, learned single Judge ought to have given to the appellant-petitioner opportunity to explain the findings and produce such materials which he thought were going to establish his innocence. This course has not been adopted by the learned single Judge. The appellant-petitioner has not been removed from service. He continued to work while he was subjected to the enquiry and even after imposition of punishment. There was/is no occasion for any prejudice to the employer if it was/is asked to serve a copy of the enquiry report upon the appellant-petitioner and thus afford to him opportunity of being heard before any action was/is taken against him. We have reasons to come to the above conclusion. It is well settled that no employer can make any order adverse to the employee, without affording opportunity of being heard to him; the rights which flow from the conditions of service of an employee are embraced by the right to life as contemplated under Article 21 of the Constitution of India. If employers act in a hurry and act upon the enquiry reports, copy of which are not served upon the delinquent employees, they act arbitrarily and by such arbitrary act deny to the employees the right under Article 14 read with Article 16 of the Constitution of India.
6. In Writ Appeal No. 349 of 1995 thus we have two courses open :
(1) that we set aside the impugned judgment and remit the matter for a fresh hearing by the learned single Judge; and
(2) that there being no prejudice to the interests either of the employer or the employee, we set aside the order imposing punishment and remit the matter for further proceedings against the appellant-petitioner, if the disciplinary authority so chooses, from the stage of the service of a copy of the enquiry report.
In Writ petition No. 11481 of 1994, however, the Court has not applied itself at all except the hearing which we have given to the parties and found that the proceedings against the appellant-petitioner is inflicted by the same vice as the proceeding in Writ Appeal No. 349 of 1995. We are choosing in the instant case the second alternative, which, in our opinion, is in the best interests of the parties to set aside the impugned orders and remit the matter to the disciplinary authority to decide afresh and proceed, if he so decides, from the stage of the service of a copy of the enquiry report upon the appellant-petitioner, in accordance with law.
7. The petition in which the appellant-petitioner has challenged his transfer, however, stands on a different footing. No employee can deny to the employer the right to transfer him. Transfer is one of the incidents of service. The appellant-petitioner has chosen, however, to question the order of transfer on grounds, inter alia, that he has been subjected to harassment by the respondents because he has chosen to bring to the notice of the superior Officers certain acts and omissions of the local Officers and has chosen also to move this Court against arbitrary actions of the respondents of punishing him without any just cause. In course of hearing of the matter, we called upon the respondents to produce the relevant so that we could know the real of the appellant-petitioner’s transfer. The records only show that the respondents have decided to transfer the appellant-petitioner for the reasons of exigencies of service. Appellant-petitioner, however, has questioned the statement of fact that he was the senior Officer available for being sent for administrative reasons to his new post. Orders of transfer, it is well settled, are ordinarily not interfered with by the Courts except on the ground that the order has been issued by a person who is not competent or that the order is hit by male fide, either in law or in fact. There is no ground before us of any malice in law. There is nothing on the record to show that by the reason of the present transfer the appellant-petitioner has been visited with any civil consequences. There is also nothing before us to hold that the Officer, who has decided to transfer the appellant-petitioner, is not competent to do so. For inferring any malice in law however, very strong grounds are needed. A reference of the presence of some prejudice or anger in the mind of the competent authority, who has decided to transfer the appellant-petitioner, however, is not such a ground which should be easily accepted. Indisputable, however, is the fact that there have been quite a few proceedings and in our opinion, rightly taken by the appellant-petitioner before this Court against the orders imposing punishment upon him. We decided for the said reason to dispose of all the matters of the appellant-petitioner pending before this Court by a common order so that presence of any proceeding before this Court may not require his appearance and he should be free from proceedings in the Court to abide by the order of transfer.
8. The view that we have taken is enough for setting aside the impugned order of the learned single Judge in Writ Appeal No. 349 of 1995 against the appellant-petitioner, the proceedings impugned in Writ Petition No. 15175 of 1992 and the proceedings which are impugned in Writ Petition No. 11481 of 1994 and to remit the proceedings from the stage of the service of a copy of the enquiry report upon the appellant-petitioner and to proceed against the appellant, if the disciplinary authority so decides, from that stage in accordance with law, in both Writ Appeal No. 349 of 1995 and Writ petition No. 11481 of 1994. In case it is decided to proceed against the appellant-petitioner from the stage as indicated above, and in case the appellant-petitioner is transferred to any other station, the proceedings shall also be transferred and continued at the place he is posted.
9. In the result, Writ Appeal No. 349 of 1995 and Writ Petition No. 11481 of 1994 are ordered as above and Writ Appeal No. 964 of 1995 is dismissed.
