Employees Are Entitled To Enquiry Report Before Any Disciplinary/Punitive Action Is Taken Against Them
It is common knowledge that employees are dismissed from service or strict
punitive action is taken against them on the basis of Enquiry Reports, which the
hapless employees are never confronted. On the face of it, in such cases, there
appears gross violation of the established principles of Natural Justice. Such
actions of the employers are bad for numerous reasons and the Courts have
consistently deprecated this practice.
It would be trite to refer to the Landmark Constitution Bench judgment in the case of Managing Director Ecil Hyderabad Etc. vs B. Karunakar Etc. Etc. 1993 (4) SCC 727. The case concerns the dismissal of B. Karunakar, an employee of Electronics Corporation of India Limited (ECIL) wherein the Apex Court dealt with legal issues encompassing violation of principles of natural justice, scope & methodology of disciplinary proceedings and the ambit of the Public Servant (Inquiries) Act, 1850.
The brief facts of the case are that in the year 1990, the Managing Director of ECIL received complaints regarding Karunakar's conduct wherein it was alleged that Karunakar had misused official cars and other resources and had engaged in other acts of misconduct. On the basis of the said complaints, the MD of the Company suspended Karunakar and ordered an inquiry into the allegations. Surprisingly, the inquiry was conducted by the MD himself and Karunakar was found guilty of the charges and the MD ordered his dismissal from service. Karunakar challenged his dismissal before the Andhra Pradesh High Court, which held that the dismissal was legally & factually justified. Aggrieved by the judgment of the AP High Court, Karunakar filed an Appeal in the Apex Court.
The primary issue before the Apex Court was whether the dismissal of B. Karunakar was justified particularly as the principles of natural justice were not followed in the disciplinary proceedings against Karunakar and also whether the Public Servant (Inquiries) Act, 1850 applied to Electronics Corporation of India Limited.
The Constitution in order to settle the controversy once for all formulated 7 legal question thus:
The Court after due deliberation, applied the principles of Natural Justice to the disciplinary enquiry of an employee and inferred thus:
6. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India (1970) 1 SCR 457: (AIR 1970 SC 150), it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice.
If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee, (1977)2 SCR 904: (AIR 1977 SC 965), the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.
The Courts cannot look at law in the abstract or natural justice as mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
In Institute of Chartered Accountants of India v. L. K. Ratna, AIR 1987 SC 71, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613: (AIR 1990 SC 1480), (Bhopal Gas Leak Disaster Case) and C. B. Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated.
The Court after referring to a catena of cases of the Apex Court answered questions (i) to (vii) thus:
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 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.
The Court/Tribunal should nut 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/ Tribunals which will apply their judicial mind 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 Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals 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 in law.
In this connection we may refer to a decision of this court in State Bank of India v. N. Sundara Money, (1976) 3 SCR 160: (AIR 1976 SC 1111) where the Court has shown the proper course to be adopted where the termination of service of an employee is faulted on a technical ground. This was a case where an employee was appointed as Cashier off and on by the State Bank of India between July 31, 1973 and August 29. 1973. Together with the earlier employment, this nine days, employment during the said period had ripen into 240 days of broken bits of service.
The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.
Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges. before 42nd Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty was issued to him.
The right to prove his innocence to the disciplinary authority was to be exercised by, the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment.
As pointed out earlier, it was mooted but not decided in E. Bashyan's case (AIR 1988 SC 1000) (supra) by the two learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K. C. Asthana's case (AIR 1988 SC 1338) (supra), no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) that the question squarely fell for decision before this Court. Hence till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case (supra) was decided, the position of law, on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan's case (supra) that this court laid down the law.
That decision made the law, laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry Officer's report to the employee.
The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum.
Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale on the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised.
Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty.
The case of Managing Director ECIL v. B. Karunakar is a precedent and provides guidance on the principles of natural justice in disciplinary proceedings. The case underscores the importance of fair hearings and impartial inquiries in upholding the rights of employees and ensuring justice in the workplace.
It would be apropos to refer to Hiran Mayee Bhattacharyya Vs. Secretary, S.M. School for Girls and Ors. 2002 (10) SCC 293 wherein the Apex Court observed thus:
We, therefore, direct the disciplinary authority to furnish a copy of the enquiry report to the appellant and then permit her to submit her representation/explanation to the same and pass final orders thereafter. However, this will not lead to reinstatement or to back wages inasmuch as this Court had decided in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar (1993 (4) SCC 737) that there need be no reinstatement nor back wages need be paid when the Court directs that the principles of natural justice should be followed.
We, therefore, remit the matter to the disciplinary authority, being Secretary, Shibarampur Madhyamik High School for Girls, Shibarampur, Calcutta 700061 for the aforesaid purposes. The termination order already passed will remain, but subject to the result of the fresh consideration as directed above.
It would be appropriate to refer to U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Anr. 2005 (8) SCC 264, wherein the Apex Court observed thus:
The residual question is what would the appropriate direction in such a case. Stand of the employer is that it could have justified the order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Director, ECIL v. B. Karunakar, [1993] 4 SCC 737. In paragraph 31, it was observed as follows:
In all cases where the enquiry 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 non-supply of the report. If 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 as is regrettably being done at present.
The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind 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 should 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 re-instatement 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 re-instatement 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 re-instated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the re-instatement and to what benefits, if any and the extent of the benefits, he will be entitled. The re-instatement made as a result of the setting aside the inquiry for failure to furnish the report, should be treated as a re-instatement 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.
It would be appropriate to refer to Haryana Financial Corpn. v. Kailash Chandra Ahuja (2008) 9 SCC 31 wherein the Court considered the question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee. The Court held as follows:
21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
It would be befitting to refer to the Apex Court in Union of India vs Y.S.Sadhu.Ex-Inspector
2008 (12) SCC 30 which reiterated the dictum of ECIL v. B. Karunakar (supra) ordered thus:
.....There shall not be any reinstatement but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced.
It would be relevant to refer to Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530 wherein the Apex Court summed up thus:
10. The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion.
(Vide:State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250).
It would be trite to refer to Uttarakhand Transport Corporation & Ors vs Sukhveer Singh AIR 2017 SUPREME COURT 5686, wherein the Court following the Constitution Bench judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra), allowed the appeal of the employer and observed thus:
5. The award of the labour court was set aside by the High Court on the sole ground that non-supply of the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence.
Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the show cause notice after receiving the report of the inquiry officer. On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal.
Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officer's report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officer's report not being furnished to him at all.
In Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:
[v] ……..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.
The said proposition was reiterated in The State of Uttar Pradesh vs Rajit Singh 2022 SCC OnLine SC 341 as under:
16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]).
From the aforesaid, it transpires that the law of the land is that if the enquiry report is not given to the deliquent employee and punitive action/dismissal is taken against him, the dismissal would be bad but the employee would not be entitled to reinstatement but the matter would be remitted back to the stage of enquiry. From the plain reading, it appears that the Courts have granted due redressal to the employee. But, the valuable time, his salary & his promotion are all foregone in the legal process for no fault of his. In fact, some employees even retire without adequate redressal. The Courts should ensure that the employees, engulfed by the abuse of the process of law are duly compensated.
The solution lies in the case of Chairman-Cum-M.D.,Coal India Ld.& Ors vs Ananta Saha & Ors (2011) 5 SCC 142, wherein the Apex Court gave a way out to the suffering employee thus:
46. In Managing Director, ECIL, Hyderbad etc. etc. v. B. Karunakar etc. etc., (Supra); and Union of India v. Y.S. Sandhu, Ex. Inspector, AIR 2009 SC 161, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the inquiry afresh from the stage where it stood before alleged vulnerability surfaced. However, for the purpose of holding the fresh inquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages etc. is determined by the disciplinary authority in accordance with law after the fresh inquiry is concluded.
It is indeed an irony that the employer/enquiry committee plays a prank with the employee by not giving a copy of the report to rebut the allegations, violate the established principles of Natural Justice, move for decades for redressal but are just relegated to the enquiry stage to start from the beginning. The pecuniary loss, the loss of repute & position suffered by these hapless employees is unimaginable. It is desirable that the Apex Court mandates a mechanism so that the employees who suffer due the fault of the employers/enquiry committee are given a fair treatment.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
It would be trite to refer to the Landmark Constitution Bench judgment in the case of Managing Director Ecil Hyderabad Etc. vs B. Karunakar Etc. Etc. 1993 (4) SCC 727. The case concerns the dismissal of B. Karunakar, an employee of Electronics Corporation of India Limited (ECIL) wherein the Apex Court dealt with legal issues encompassing violation of principles of natural justice, scope & methodology of disciplinary proceedings and the ambit of the Public Servant (Inquiries) Act, 1850.
The brief facts of the case are that in the year 1990, the Managing Director of ECIL received complaints regarding Karunakar's conduct wherein it was alleged that Karunakar had misused official cars and other resources and had engaged in other acts of misconduct. On the basis of the said complaints, the MD of the Company suspended Karunakar and ordered an inquiry into the allegations. Surprisingly, the inquiry was conducted by the MD himself and Karunakar was found guilty of the charges and the MD ordered his dismissal from service. Karunakar challenged his dismissal before the Andhra Pradesh High Court, which held that the dismissal was legally & factually justified. Aggrieved by the judgment of the AP High Court, Karunakar filed an Appeal in the Apex Court.
The primary issue before the Apex Court was whether the dismissal of B. Karunakar was justified particularly as the principles of natural justice were not followed in the disciplinary proceedings against Karunakar and also whether the Public Servant (Inquiries) Act, 1850 applied to Electronics Corporation of India Limited.
The Constitution in order to settle the controversy once for all formulated 7 legal question thus:
- Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?
- Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?
- Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?
- Whether the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) will apply to all establishments- Government and non-Government, public and private sector undertakings?
- What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?
- From what date the law requiring furnishing of the report should come into operation?
- Since the decision in Ramzan Khan's case (AIR 1991 SC 471) (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20th November, 1990?
The Court after due deliberation, applied the principles of Natural Justice to the disciplinary enquiry of an employee and inferred thus:
6. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India (1970) 1 SCR 457: (AIR 1970 SC 150), it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice.
If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee, (1977)2 SCR 904: (AIR 1977 SC 965), the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating.
The Courts cannot look at law in the abstract or natural justice as mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
In Institute of Chartered Accountants of India v. L. K. Ratna, AIR 1987 SC 71, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613: (AIR 1990 SC 1480), (Bhopal Gas Leak Disaster Case) and C. B. Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated.
The Court after referring to a catena of cases of the Apex Court answered questions (i) to (vii) thus:
- Since the denial of the report of the Inquiry Officer is a denial of
reasonable opportunity and a breach of the principles of natural justice, it
follows that the statutory rules, if any, which deny the report to the
employee are against the principles of natural justice and, therefore,
invalid. 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
- The relevant portion of Article 311(2) of the Constitution is as
follows:
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.
- Since it is the right of the employee to, have the report to defend
himself effectively, and he would not know in advance whether the report is
in his favour or against him, it will not be proper to construe his failure to ask
for the report, as the waiver of his right. Whether, therefore, the employee
asks for the, report or not, the report has to be furnished to him.
- In the view that we have taken, viz., that the right to make
representation to the disciplinary authority against the findings recorded
in the inquiry report is an integral part of the opportunity of defence against the charges and
is a breach of principles of natural justice to deny the said right, it is only
appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471)
(supra) 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. Hence question (iv) is answered accordingly.
- The next question to be answered is what is the effect on the order of
punishment when the report of the Inquiry Officer is not furnished to the
employee and what relief should be granted to him in such cases. The answer
to this question has to be relative to the punishment awarded. 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.
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 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.
The Court/Tribunal should nut 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/ Tribunals which will apply their judicial mind 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 Courts/ Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals 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 in law.
In this connection we may refer to a decision of this court in State Bank of India v. N. Sundara Money, (1976) 3 SCR 160: (AIR 1976 SC 1111) where the Court has shown the proper course to be adopted where the termination of service of an employee is faulted on a technical ground. This was a case where an employee was appointed as Cashier off and on by the State Bank of India between July 31, 1973 and August 29. 1973. Together with the earlier employment, this nine days, employment during the said period had ripen into 240 days of broken bits of service.
The employment, however, was terminated without notice or payment of retrenchment compensation. The Court moulded the relief taking into consideration the long period which had passed and directed that the employee would be put back to the same position where he left off, but his new salary will be what he would draw were he to be appointed in the same post today de novo. He was further directed to be ranked below all permanent employees in that cadre and to be deemed to be a temporary hand till that time. He was not allowed to claim any advantages in the matter of seniority. As for the emoluments, he was left to pursue other remedies, if any.
Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges. before 42nd Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty was issued to him.
The right to prove his innocence to the disciplinary authority was to be exercised by, the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment.
As pointed out earlier, it was mooted but not decided in E. Bashyan's case (AIR 1988 SC 1000) (supra) by the two learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K. C. Asthana's case (AIR 1988 SC 1338) (supra), no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) that the question squarely fell for decision before this Court. Hence till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case (supra) was decided, the position of law, on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan's case (supra) that this court laid down the law.
That decision made the law, laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry Officer's report to the employee.
The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum.
Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale on the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised.
Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty.
The case of Managing Director ECIL v. B. Karunakar is a precedent and provides guidance on the principles of natural justice in disciplinary proceedings. The case underscores the importance of fair hearings and impartial inquiries in upholding the rights of employees and ensuring justice in the workplace.
It would be apropos to refer to Hiran Mayee Bhattacharyya Vs. Secretary, S.M. School for Girls and Ors. 2002 (10) SCC 293 wherein the Apex Court observed thus:
We, therefore, direct the disciplinary authority to furnish a copy of the enquiry report to the appellant and then permit her to submit her representation/explanation to the same and pass final orders thereafter. However, this will not lead to reinstatement or to back wages inasmuch as this Court had decided in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar (1993 (4) SCC 737) that there need be no reinstatement nor back wages need be paid when the Court directs that the principles of natural justice should be followed.
We, therefore, remit the matter to the disciplinary authority, being Secretary, Shibarampur Madhyamik High School for Girls, Shibarampur, Calcutta 700061 for the aforesaid purposes. The termination order already passed will remain, but subject to the result of the fresh consideration as directed above.
It would be appropriate to refer to U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Anr. 2005 (8) SCC 264, wherein the Apex Court observed thus:
The residual question is what would the appropriate direction in such a case. Stand of the employer is that it could have justified the order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Director, ECIL v. B. Karunakar, [1993] 4 SCC 737. In paragraph 31, it was observed as follows:
In all cases where the enquiry 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 non-supply of the report. If 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 as is regrettably being done at present.
The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind 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 should 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 re-instatement 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 re-instatement 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 re-instated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the re-instatement and to what benefits, if any and the extent of the benefits, he will be entitled. The re-instatement made as a result of the setting aside the inquiry for failure to furnish the report, should be treated as a re-instatement 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.
It would be appropriate to refer to Haryana Financial Corpn. v. Kailash Chandra Ahuja (2008) 9 SCC 31 wherein the Court considered the question of the relief to be granted in cases where the report of the inquiry officer was not supplied to the delinquent employee. The Court held as follows:
21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
It would be befitting to refer to the Apex Court in Union of India vs Y.S.Sadhu.Ex-Inspector
2008 (12) SCC 30 which reiterated the dictum of ECIL v. B. Karunakar (supra) ordered thus:
.....There shall not be any reinstatement but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced.
It would be relevant to refer to Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530 wherein the Apex Court summed up thus:
10. The second question involved herein, is also no longer res integra.
Whether or not the disciplinary authority should be given an opportunity, to complete the enquiry afresh from the point that it stood vitiated, depends upon the gravity of delinquency involved. Thus, the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds.
The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion.
(Vide:State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987 SC 943; State of Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibition & Excise Department v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan, AIR 1998 SC 1833; M.V. Bijlani v. Union of India & Ors., AIR 2006 SC 3475; Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906; and The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250).
It would be trite to refer to Uttarakhand Transport Corporation & Ors vs Sukhveer Singh AIR 2017 SUPREME COURT 5686, wherein the Court following the Constitution Bench judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra), allowed the appeal of the employer and observed thus:
5. The award of the labour court was set aside by the High Court on the sole ground that non-supply of the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The High Court, in our opinion, committed an error in its interpretation of the judgment in Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra). It is no doubt true that this Court in the said judgment held that a delinquent employee has a right to receive the report of the inquiry officer before the disciplinary authority takes a decision regarding his guilt or innocence.
Denial of a reasonable opportunity to the employee by not furnishing the inquiry report before such decision on the charges was found to be in violation of principles of natural justice. In the instant case, the disciplinary authority communicated the report of the inquiry officer to the Respondent along with the show cause notice. There is no dispute that the Respondent submitted his reply to the show cause notice after receiving the report of the inquiry officer. On considering the explanation submitted by the Respondent, the disciplinary authority passed an order of dismissal.
Though, it was necessary for the Appellants to have supplied the report of the inquiry officer before issuance of the show cause notice proposing penalty, we find no reason to hold that the Respondent was prejudiced by supply of the inquiry officer's report along with the show cause notice. This is not a case where the delinquent was handicapped due to the inquiry officer's report not being furnished to him at all.
In Managing Director ECIL Hyderabad & Ors. v. B. Karunakar & Ors. (supra) this Court, while considering the effect on the order of punishment when the report of the inquiry officer was not furnished to the employee and the relief to which the delinquent employee is entitled, held as under:
[v] ……..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.
The said proposition was reiterated in The State of Uttar Pradesh vs Rajit Singh 2022 SCC OnLine SC 341 as under:
16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]).
From the aforesaid, it transpires that the law of the land is that if the enquiry report is not given to the deliquent employee and punitive action/dismissal is taken against him, the dismissal would be bad but the employee would not be entitled to reinstatement but the matter would be remitted back to the stage of enquiry. From the plain reading, it appears that the Courts have granted due redressal to the employee. But, the valuable time, his salary & his promotion are all foregone in the legal process for no fault of his. In fact, some employees even retire without adequate redressal. The Courts should ensure that the employees, engulfed by the abuse of the process of law are duly compensated.
The solution lies in the case of Chairman-Cum-M.D.,Coal India Ld.& Ors vs Ananta Saha & Ors (2011) 5 SCC 142, wherein the Apex Court gave a way out to the suffering employee thus:
46. In Managing Director, ECIL, Hyderbad etc. etc. v. B. Karunakar etc. etc., (Supra); and Union of India v. Y.S. Sandhu, Ex. Inspector, AIR 2009 SC 161, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the inquiry afresh from the stage where it stood before alleged vulnerability surfaced. However, for the purpose of holding the fresh inquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages etc. is determined by the disciplinary authority in accordance with law after the fresh inquiry is concluded.
It is indeed an irony that the employer/enquiry committee plays a prank with the employee by not giving a copy of the report to rebut the allegations, violate the established principles of Natural Justice, move for decades for redressal but are just relegated to the enquiry stage to start from the beginning. The pecuniary loss, the loss of repute & position suffered by these hapless employees is unimaginable. It is desirable that the Apex Court mandates a mechanism so that the employees who suffer due the fault of the employers/enquiry committee are given a fair treatment.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
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