{"id":29158,"date":"2006-11-01T00:00:00","date_gmt":"2006-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-shekhar-ghosh-vs-union-of-india-anr-on-1-november-2006"},"modified":"2015-12-26T07:08:34","modified_gmt":"2015-12-26T01:38:34","slug":"shri-shekhar-ghosh-vs-union-of-india-anr-on-1-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-shekhar-ghosh-vs-union-of-india-anr-on-1-november-2006","title":{"rendered":"Shri Shekhar Ghosh vs Union Of India & Anr on 1 November, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shri Shekhar Ghosh vs Union Of India & Anr on 1 November, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (civil)  4635 of 2006\n\nPETITIONER:\nShri Shekhar Ghosh\t \t\t\t\t\n\nRESPONDENT:\nUnion of India & Anr.\t\t\t\t\t\n\nDATE OF JUDGMENT: 01\/11\/2006\n\nBENCH:\nS.B. SINHA & MARKANDEY KATJU\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out SLP) No. 1400 of 2006)<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
Appellant was appointed as Khalasi at Kota Railway Station of
\nWestern Railway Administration in the year 1981.  On 8th February, 1985,
\nhe was promoted as a Junior Clerk.  A test was conducted by Chief Works
\nManager (Wagon Repair Shop) of Western Railway, Kota.  He qualified in
\nthe same test.  The Western Railways Administration started one Railway
\nElectrification Project and he was transferred thereto in September 1985.
\nWhile working there as a Junior Clerk, he was promoted as a Senior Clerk
\non 24.4.1987 on an ad hoc basis.  On completion of the project, he was
\nrepatriated to his original office.  Although he was posted in the office of the
\nKota Railway Station of Western Railway Administration, he was kept in
\nthe said workshop.  A request for change of his name was agreed to by the
\ncompetent authority, namely, the second Respondent herein and his request
\nfor absorption on the said post was also accepted.\n<\/p>\n
A complaint against him by four employees working in the Divisional
\nOffice of Kota was made on 4.5.1994 that he was not entitled thereto
\nalleging that the promotion granted to him was not a regular one.  Relying
\non or on the basis of the said complaint, a show cause notice was issued on
\n10.4.1995 to him which is in the following terms:-\n<\/p>\n
“”According to the rule for the change of lien, the
\napplication of the employee should have been forwarded
\nfrom his parental department.  But it did not happen so
\nand then the Chief Clerk Sh. Hridesh Bhatnagar,
\nemployee in the Establishment Branch in Divisional
\nOffice without any enquiry fixed the lien of Sh. Shekhar
\nGhosh in the W.B.S.M. Group in the Divisional Office
\nand Rs.5000\/- as a bribe was taken for this forgery work.
\nSh. Shekhar Ghosh is employed on today’s date as
\na clerk by way of forgery under Assistant Engineer
\n(Central), Kota.  Sh. Shekhar Ghosh has not even passed
\nany departmental examination for becoming clerk; even
\nthen he has been posted as clerk in a forged manner.
\nWhen Shri Shekhar Ghosh had come after having
\nrepatriated from R.I. Organisation then he should have
\nbeen relieved for Goods Compartment Repairing Factory,
\nKota and whatever his position adjusted there as Khalasi
\nor Fitter, there itself he should have been adjusted.
\nHowever, it id not happen so.  Nothing sort of any
\ncorrespondence was done with the parental Department
\nof Sh. Shekhar Ghosh.\n<\/p>\n
In a similar situated case, Sh. Pandey was already
\nrefused to take from R.I. then how the rule framed
\nseparately for Sh. Shekhar Ghosh.\n<\/p>\n
Therefore, it is requested that this forgery case of
\nSh. Shekhar Ghosh be got enquired into immediately and
\ndisciplinary action be initiated against the then Head
\nClerk who mislead the administration and having taken
\nbribe in a fraudulent manner Sh. Shekhar Ghosh made a
\nclerk from Khalasi.”\n<\/p>\n
\tHe filed his reply to the show cause requesting that he should be
\ntreated to be a selected Clerk `whose lien has been changed from WRS to
\nDivision’ so that his legitimate dues are saved.\n<\/p>\n
\tBy an order dated 18.10.1996, he was repatriated to his original place
\nof work i.e. the office of the Chief Manager of Factory, Goods Compartment
\nRepairing Factory, Kota.  Yet again, on 22.10.1996, another Office Order
\nwas issued.\n<\/p>\n
\tAppellant filed an Original Application before the Central
\nAdministrative Tribunal.  The operation of the order was stayed by an
\ninterim order dated 1.11.1996.  However, by an order dated 17.11.1996, the
\nAdministrative Tribunal noticing that his name in the seniority list had been
\nincluded by way of mistake, it was opined that there was no illegality or
\ninfirmity in the action taken in repatriating the appellant.\n<\/p>\n
\tA Writ Petition filed by Appellant questioning the said order had been
\ndismissed by a Division Bench of the High Court by an order dated
\n26.10.2004.  The High Court arrived at its findings, inter alia, on the
\npremise that a finding of fact had been recorded by the Tribunal that
\nAppellant had been holding the post of a Clerk on regular basis was accepted
\nunder a mistake, holding:-\n<\/p>\n
“The juniors to the petitioner had rightly made a
\nrepresentation against this untimely service benefits
\ngiven to the petitioner.  It is also not the case where
\nwithout notice and affording opportunity of hearing to
\nthe petitioner the impugned order has been passed by the
\nrespondent.  On the representation made by the other
\nemployees the respondents took all the care and caution,
\nthe enquiry had been conducted and only after detection
\nof the mistake and after giving opportunity of hearing to
\nthe petitioner he was reverted.\n<\/p>\n
\tAfter considering the entire record of the writ
\npetition we are satisfied that the petitioner was rightly
\nrepatriated back to the work-shop where he was holding
\nthe lien on the post of khalasi (Gr.II).”\n<\/p>\n
\tThe contention of Appellant was that an entry had been made in his
\nservice record in regard to regularization of his services but no order was
\nserved upon him stating:-\n<\/p>\n
“That the decision of the respondents is contrary to the
\nrecord.  In the service record of the applicant it has been
\nverified by the competent authority that applicant is
\nholding the post of Junior Clerk in substantive capacity.”\n<\/p>\n
\tIn the counter-affidavit filed before the Tribunal, Respondents herein
\naccepted the said contention stating:-\n<\/p>\n
“5(j).\tThat the contents of para no. 5(j) of the original
\napplication are denied.  Orders for regularization of the
\napplicant as Clerk were never passed.  The alleged entry
\nmade in the service record is also wrong and due to the
\nmistake committed on part of the answering respondent.”\n<\/p>\n
\tAppellant had asked for production of his service records which was
\ndeclined.  Respondents, therefore, indisputably proceeded on the basis that a
\nmistake occurred in making an entry in the service book of the appellant.
\nThe mistake committed admittedly, thus, was on the part of the respondents.\n<\/p>\n
\tThe mistake was said to have been detected on the basis of the
\ncomplaint made by four employees.  Serious allegations had been made
\nagainst the appellant therein.  If the allegations made therein were correct;
\nthen not only the appellant but also other officers of the department, whom
\nhe had allegedly paid bribe for forging the documents, were guilty of
\nmisconduct.\n<\/p>\n
\tAppellant had never been supplied with a copy of the said complaint.
\nNo disciplinary proceedings were initiated against him.  No charge was
\nframed, nor any witness was examined.  No Inquiry Officer was appointed
\nto conduct an enquiry into the allegations on the charges of misconduct
\nframed against the appellant in that behalf.\n<\/p>\n
\tThe order dated 21.11.1996 clearly demonstrates that the Senior
\nDivisional Officer, Kota, without holding an enquiry arrived at a finding that
\nhis original post was Khalasi in Wagon Repair Shop, Kota and his lien had
\nbeen cancelled.  He was directed to be repatriated.  Despite arriving at such a
\nfinding, a post-decisional hearing was sought to be afforded to the appellant.\n<\/p>\n
\tA post decisional hearing was not called for as the disciplinary
\nauthority had already made up its mind before giving an opportunity of
\nhearing.  Such a post-decisional hearing in a case of this nature is not
\ncontemplated in law.  The result of such hearing was a foregone conclusion.\n<\/p>\n
\tIn K.I. Shephard v. Union of India AIR<\/a> 1988 SC 686, this Court
\nopined:-\n<\/p>\n
“…It is common experience that once a decision has been
\ntaken, there is a tendency to uphold it and a
\nrepresentation may not really yield any fruitful purpose.”\n<\/p>\n
 \t[See also V.C. Banaras Hindu University and Ors. v. Shrikant,<\/a> 2006
\n(6) SCALE 66].\n<\/p>\n
 \tWe are, however, not oblivious of the fact that there is some shift in
\nthe concept of principles of natural justice which has been noticed by this
\nCourt in P.D. Agrawal v. State Bank of India & Ors.,<\/a> 2006 (5) SCALE 54 in
\nthe following terms:\n<\/p>\n
“The Court has shifted from its earlier concept
\nthat even a small violation shall result in the order
\nbeing rendered a nullity.  To the principal doctrine
\nof audi alterem partem, a clear distinction has been
\nlaid down between the cases where there was no
\nhearing at all and the cases where there was mere
\ntechnical infringement of the principal.  The Court
\napplies the principles of natural justice having
\nregard to the fact situation obtaining in each case.
\nIt is not applied in a vacuum without reference to
\nthe relevant facts and circumstances of the case.  It
\nis no unruly horse.  It cannot be put in a
\nstraightjacket formula”\n<\/p>\n
\tIt is not denied or disputed that even when a mistake is sought to be
\nrectified, if by reason thereof, an employee has to suffer civil consequences
\nordinarily the principles of natural justice are required to be complied with.
\nIt was so held in Ram Ujarey v. Union of India<\/a> [(1999) 1 SCC 685] in the
\nfollowing terms:-\n<\/p>\n
“17.\tThere is yet another infirmity in the impugned
\norder of reversion.  The appellant had been allowed the
\nbenefit of service rendered by him as Coal Khalasi in the
\nLoco Department from 1964 to 1972 as that period was
\ncounted towards his seniority and it was on that basis that
\nhe was called for the trade tests which the appellant had
\npassed and was, thereafter, promoted to the posts of
\nSemi-skilled Fitter and Skilled Fitter.  If the benefit of
\nservice rendered by him from 1964 to 1972 was intended
\nto be withdrawn and promotion orders were to be
\ncancelled as having been passed on account of mistake,
\nthe respondents ought to have first given an opportunity
\nof hearing to the appellant.  The appellant having earned
\ntwo promotions after having passed the trade tests, could
\nnot have been legally reverted two steps below and
\nbrought back to the post of Khalasi without being
\ninformed that the period of service rendered by him from
\n1964 to 1972 could not be counted towards his seniority
\nand, therefore, the promotion orders would be cancelled.
\nIn a situation of this nature, it was not open to the
\nrespondents to have made up their mind unilaterally on
\nfacts which could have been shown by the appellant to be
\nnot correct but this chance never came as the appellant, at
\nno stage, was informed of the action which the
\nrespondents intended to take against him.”\n<\/p>\n
\tCuriously Respondents in their counter-affidavits filed before the
\nTribunal and the High Court did not raise any plea of rectification of any
\nmistake. It was also not stated in the show cause notice issued to the
\nappellant.  Only a plea of mistake was taken for the first time before the
\nTribunal, but no plea was taken that it was entitled to rectify the same or his
\norder impugned before it was capable of being rectified.  Thus, it was not a
\ncase where an opportunity of hearing was given to Appellant on the premise
\nthat a mistake had been committed by the authorities of the first respondent
\nand the same was required to be rectified.\n<\/p>\n
\tIf a mistake is to be rectified the same should be done as expeditiously
\nas possible.  \t[See Board of Secondary Education, Assam v. Mohd.
\nSarjumma (2003) 12 SCC 408]<\/p>\n
\tWe are not oblivious that in Ram Chandra Tripathi v. U.P. Public
\nServices Tribunal IV and Others<\/a> [(1994) 5 SCC 180], an order passed by
\nway of a mistake was permitted to be corrected as the same was done in
\nviolation of the order of injunction.  In such a situation only, this Court held
\nthat an opportunity of being heard for correcting such mistake would not
\narise because there would not have been any occasion to take one view or
\nthe other in the matter on the basis of representation to be made by the
\naffected employee.\n<\/p>\n
 \tIt is also not a case where a mistake was apparent on the face of the
\nrecords and, thus, compliance of the principles of natural justice would not
\nhave made any difference as was in the case of Smt. Ratna Sen nee Roy v.
\nThe State of West Bengal & Ors. [1995 (1) Cal. LT 462].\n<\/p>\n
\tRequirements to comply with the principles of natural justice would,
\ntherefore, vary from case to case.  If upon giving an opportunity of hearing
\nto an affected employee, it is possible to arrive at a different finding, the
\nprinciples of natural justice must be complied with.  We may notice that
\nrecently in Union of India & Ors. v. Bikash Kuanar<\/a> [2006 (10) SCALE 86],
\na Division Bench of this Court opined:-\n<\/p>\n
“It is now trite that if a mistake is committed in
\npassing an administrative order, the same may be
\nrectified.  Rectification of a mistake, however, may in a
\ngiven situation require compliance of the principles of
\nnatural justice.  It is only in a case where the mistake is
\napparent on the face of the records, a rectification thereof
\nis permissible without giving any hearing to the
\naggrieved party.”\n<\/p>\n
\tIn this case, Respondents accept that Appellant was entitled to a
\nhearing.  All the necessary ingredients of principles of natural justice were
\nthus required to be complied with.  Appellant as noticed hereinbefore had
\nnot been given adequate opportunity of hearing inasmuch as: (i) the hearing
\nwas sought to be given was a post-decisional one, which is bad in law; (ii) a
\ncopy of the complaint was not supplied to Appellant at furtherance if not
\nproposed that a mistake was sought to be rectified; (iii) No charges were
\nframed; (iv) no witness was examined; and (v) no Inquiry Officer arrived at
\nany finding that Appellant was guilty of the charges levelled against him.\n<\/p>\n
\tThe Tribunal or the High Court did not consider these aspects of the
\nmatter.  The impugned judgment, therefore, cannot be sustained.\n<\/p>\n
\tFor the reasons aforementioned, the appeal is allowed.  However, in
\nthe facts and circumstances of this case, there will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shri Shekhar Ghosh vs Union Of India & Anr on 1 November, 2006 Author: S Sinha Bench: S.B. Sinha, Markandey Katju CASE NO.: Appeal (civil) 4635 of 2006 PETITIONER: Shri Shekhar Ghosh RESPONDENT: Union of India & Anr. DATE OF JUDGMENT: 01\/11\/2006 BENCH: S.B. SINHA & MARKANDEY KATJU JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29158","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShri Shekhar Ghosh vs Union Of India & Anr on 1 November, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-shekhar-ghosh-vs-union-of-india-anr-on-1-november-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Shekhar Ghosh vs Union Of India & Anr on 1 November, 2006 - 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