State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow vs Ram Prakash Singh

Disciplinary action for misconduct – Departmental Enquiry – Non-service of Enquiry report – Right to receive the enquiry report fundamental safeguard in disciplinary proceedings – Test of prejudice – What is the effect and impact of nonfurnishing the report of enquiry by the disciplinary authority to a delinquent employee before he is punished; Does he have to plead and prove ‘prejudice’; Is it in all or specific circumstances that the courts would insist on the delinquent employee to demonstrate ‘prejudice’; Is furnishing of the report of enquiry merely a procedural step in the disciplinary proceedings or something more – Law declared in Constitution Bench judgment in B. Karunakar’s case – Interpretation of – Shifting of trend towards the ‘prejudice’ principle; insistence on the pleading and proof of ‘prejudice’ – Constitution of India – Article 311. [Paras 37-44, 52]

Departmental Enquiry – Furnishing of enquiry report – Mandatory – Test of ‘prejudice’:

Held: The requirement of furnishing the report of enquiry, though procedural, is mandatory and the bogey argument of the employer to apply the test of ‘prejudice’ when the report of enquiry is not furnished cannot be of any avail to thwart the challenge of the delinquent employee – Such test could call for application, if from the facts and circumstances, it can be established that the delinquent employee waived his right to have the report furnished – Should satisfactory explanation be not proffered by the employer for its failure/omission/neglect to furnish the enquiry report, that ought to be sufficient for invalidating the proceedings and directing resumption from the stage of furnishing the report – No proof of prejudice for breach of a statutory rule or the principles of natural justice and fair play need be proved, unless there is a waiver, either express or by conduct, to of the right to receive the report – It is only in specific and not in all circumstances that proof of ‘prejudice’ ought to be insisted upon. [Para 52]

Departmental Enquiry – Evidence Act, 1872 – Applicability of – Infirmity in the process of decision making in the present case: Held: ‘Materials brought on record by the parties’ (to which consideration in the enquiry ought to be confined) mean only such materials can be considered which are brought on record in a manner known to law – Such materials can then be considered legal evidence, which can be acted upon – Though the Evidence Act, 1872 is not strictly applicable to departmental enquiries, which are not judicial proceedings, nevertheless, the principles flowing therefrom can be applied in specific cases – Evidence tendered by witnesses must be recorded in the presence of the delinquent employee, he should be given opportunity to cross-examine the witnesses and no document should be relied on by the prosecution without giving copy thereof to the delinquent – All these basic principles of fair play have their root in such Act – In the present case, the documents referred to in the list of documents forming part of the annexures to the chargesheet, on which the department seeks to rely in the enquiry, cannot be treated as legal evidence worthy of forming the basis for a finding of guilt if the contents of such documents are not spoken to by persons competent to speak about them – A document does not prove itself – In the enquiry, therefore, the contents of the relied-on documents have to be proved by examining a witness having knowledge of the contents of such document and who can depose as regards its authenticity – In the present case, no such exercise was undertaken by producing any witness – The enquiry conducted by the Enquiry Officer in a manner not authorised by law could not have formed the basis of the order of punishment dated 24.03.2015 imposed on the respondent. [Paras 14, 18]

Departmental Enquiry – Challenge to order of punishment – Non-furnishing of the report of enquiry to the employee – ‘Test of prejudice’ – Applicability – Proper course for the tribunal/court to adopt:

Held: Whenever a challenge is made to an order of punishment on, inter alia, the ground that the report of enquiry has not been furnished, the tribunal/court should require the employer (Government, public or private) to justify non-furnishing of such report – If no valid explanation is proffered and the tribunal/court suspects unfair motives (report has not been furnished as part of a strategic ploy or to advance an unholy cause or prompted by extraneous reasons) or carelessness, without much ado and without insisting for ‘prejudice’ to be demonstrated, the order of punishment should be set aside and the proceedings directed to resume from the stage of offering opportunity to the delinquent employee to respond to the enquiry report – Irrespective of ‘prejudice’ being demonstrated, no employer or for that matter anyone should be permitted to gain any benefit by violating the law – In case the tribunal/court is satisfied that real effort was made by the employer but such effort remained abortive because the report could not be furnished to the employee for reason(s) beyond its control, or some other justification is placed on record, which is acceptable to the tribunal/court, the test of ‘prejudice’ is open to be applied but only after ensuring service of a copy of the enquiry report on the employee – In a case where the employee either expressly or by his conduct appears to have waived the requirement of having access to the report, it would be open to the tribunal/court to deal with the situation as per its discretion – However, the simplicitor application of the ‘prejudice’ test absent a query to the employer, would be in the teeth of the law laid down by the Constitution Bench in B. Karunakar’s case. [Para 51]

U.P. Government Servants (Discipline and Appeal) Rules, 1999 – r.9(4) – Departmental Enquiry – Non-furnishing of the report of enquiry to the respondent-employee – “Test of prejudice” – Plea of the appellant that the test of ‘prejudice’ ought to be applied in this case since the respondent did not participate in the enquiry and, therefore, there was no obligation for the disciplinary authority to furnish such report: Held: Except that the respondent had not participated in the second round of enquiry and, hence, the disciplinary authority was not under obligation to furnish him the enquiry report, there is no other explanation as to why such report was not furnished to the respondent – Even assuming that the respondent had without justification stayed away from the enquiry, the disciplinary authority could not have considered the report of the Enquiry Officer in view of what has been held in paragraph 26 in B. Karunakar as well as Rule 9(4) of the 1999 Rules – Also, since the report of enquiry has been withheld by the appellant at all three tiers, it is preposterous that he would be in a position to plead and prove prejudice – Relying on the law declared in S.K. Sharma which, had relied on B. Karunakar, the prejudice is self-evident and no proof of prejudice as such is called for in this case – Adverse presumption drawn that there was a purpose behind withholding the report. [Paras 55, 59]

Practice and Procedure – Remittance of case – Requirements of ‘due process’ not satisfied – Breach of statutory rules – Whether present case be remitted to disciplinary authority: Held: No – Remitting would mean reverting to the stage of production of witnesses on behalf of the department – When not a single witness could be produced for examination in 2010 and 2014, now witnesses would not be available to support the charges – Proceedings have certain incidents of 2004-05 as the origin – Having regard to the lapse of time since then coupled with the retirement of the respondent from service in 2010 and, more particularly, when the appellant despite an earlier opportunity granted by the Tribunal has failed to avail the same by continuing the enquiry in accordance with law, it would be highly unfair and unjust to subject the respondent to face the enquiry once again – Gravity of the offence alleged to have been committed is certainly a vital consideration; however, repeated opportunities cannot be claimed without there being overwhelming public interest warranting such opportunity – On facts, second opportunity was not required to be given – Also, two of the respondent’s colleagues (one of them a senior officer) who were also proceeded against were practically let off with no punishment or punishment of stoppage of increments – No useful purpose will be served by reviving the disciplinary proceedings and in remitting the case to the appellant. [Para 71]

Departmental Enquiry – Fixed time stipulated by tribunal/court to conclude the proceedings – Extension of time: Held: It may not always be possible for the disciplinary authority in each such case where a fixed time has been stipulated by a tribunal/court to conclude the proceedings to apply and seek extension of time before expiry of such time although there can be no gainsaying that applying and obtaining an extension before expiry is eminently desirable – In exceptional cases, even after expiry of the stipulated time, such an application can be moved; and, depending on the cause shown for inability or failure to conclude the proceedings within the time stipulated and also for not applying for extension before expiry, the tribunal/court may, in its discretion, allow or reject the prayer for extension – If the application is rejected, the proceedings cannot be carried forward unless a superior court, reversing the order of rejection, permits the disciplinary authority to so proceed – If the delinquent employee objects to continuation of proceedings beyond the time stipulated, the disciplinary authority without proceeding further ought to apply for extension of time and may not go ahead till such time its prayer for extension is granted on such application – Proceeding despite objection and without there being an extension could give rise to apprehensions of bias – Therefore, applying for extension upon halting the proceedings awaiting order on the application would be an advisable course of action to balance the interests of both the employer and the employee – Even if the delinquent employee has not objected to continuation of proceedings beyond the time stipulated by the tribunal/court but before the final order is passed in the proceedings, the disciplinary authority would be bound to seek and obtain extension of time – If a tribunal/court stipulates a fixed time by which an enquiry or proceedings for disciplinary action ought to be concluded coupled with a rider that, in default, the enquiry/proceedings will stand lapsed, the disciplinary authority in such a case would cease to have the jurisdiction to proceed further unless, citing genuine grounds, a recall of such default clause is sought and obtained to proceed further in accordance with law. [Para 62]