@JUDGMENTTAG-ORDER
Sri. Sanjay Kumar, J. - The petitioner, a Junior Civil Judge, was visited with the minor penalty of stoppage of two increments without cumulative effect under proceedings dated 11.11.2014 of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. By way of this writ petition, he prays for quashing of the said proceedings and for all consequential benefits.
2. Disciplinary proceedings were initiated against the petitioner by the High Court, vide order dated 08.11.2011, under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for brevity, ''the Rules of 1991''). Be it noted that, in terms of Rule 19 of the Andhra Pradesh State Judicial Service Rules, 2007, the Rules of 1991 are made applicable to members of the judicial service.
3. A single charge was framed against the petitioner that while working as a Judicial Magistrate of First Class at Addateegala, East Godavari District, he issued a non-bailable warrant against A4 in C.C.No.16 of 2006 on 14.09.2009 without verifying the record, though there was a note on the docket that summons was to be issued to A4, signed the non-bailable warrant on 30.09.2009, and kept A4 in unwarranted and illegal custody from 06.10.2009 to 14.10.2009, thereby acting in a most negligent and callous manner, which act of his, if proved or established, amounted to grave misconduct unbecoming of a judicial officer within the meaning of Rule 3 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964.
4. Dissatisfied with his explanation to the charge, the High Court instituted a regular departmental inquiry against him, under proceedings dated 09.02.2012. The District Judge (Enquiries) was appointed as the inquiry officer. Upon completion of the inquiry, he submitted report dated 29.04.2014 holding the charge against the petitioner duly proved. But, the High Court, upon consideration of the said report and the material on record, decided to impose a minor penalty specified under Rule 9 of the Rules of 1991 and accordingly issued the impugned proceedings dated 11.11.2014, directing stoppage of two annual grade increments of the petitioner without cumulative effect.
5. In the affidavit filed in support of this writ petition, the petitioner raised various issues touching upon the merits of the case. It is however fairly well settled that this Court, in exercise of writ jurisdiction, would not sit as an appellate authority in matters of this nature. Only the decision making process is subjected to judicial review and not the decision itself, unless warranted by any special circumstances. No such special circumstances are made out in the case on hand and that is perhaps the reason why Sri D. Prakash Reddy, learned senior counsel representing Sri S. Ashok Anand Kumar, learned counsel for the petitioner, did not choose to advance arguments on the merits of the proved misconduct of the petitioner. This Court therefore does not propose to examine the merits of the misconduct alleged against the petitioner and the finding recorded thereon. Suffice it to state that the petitioner did not deny that he signed the non-bailable warrant but blamed the subordinate staff in connection therewith and sought exoneration. The challenge of Sri D. Prakash Reddy, learned senior counsel, to the impugned proceedings is essentially on the ground that the procedure prescribed under Rule 21 of the Rules of 1991 was not followed. He would contend that, in consequence thereof, the punishment imposed upon the petitioner stands vitiated.
6. The Registrar (Judicial) of the High Court filed a counter-affidavit stating that imposition of a minor penalty, despite initiation of disciplinary proceedings under Rule 20 of the Rules of 1991 for imposing a major penalty, is valid in law as it is duly authorised by the Rules of 1991. He stated that the petitioner was subsequently furnished a copy of the inquiry report in November, 2014. The Registrar further stated that the petitioner sought review of the proceedings dated 11.11.2014 but upon considering the same, the High Court rejected the review petition under proceedings dated 23.06.2015. The Registrar sought to justify imposition of the minor penalty on merits. He claimed that the petitioner did not suffer any prejudice on account of non-supply of the inquiry report before imposition of the minor penalty and that the action taken against him was therefore justified and legal.
7. In his reply affidavit, the petitioner reiterated that the mandatory procedure prescribed under Rule 21 of the Rules of 1991 was not adhered to and the minor penalty imposed upon him cannot therefore be sustained.
8. Rule 9 of the Rules of 1991 enumerates the penalties that may be imposed on a Government servant under two categories - minor penalties and major penalties. Withholding of increments of pay without cumulative effect figures in Rule 9(iv) of the Rules of 1991 under the caption ''Minor Penalties''. Part V of the Rules of 1991 deals with the procedure for imposing penalties and under Rules 20 and 21 therein, a separate procedure is stipulated for imposing major penalties. The procedure for imposing minor penalties is prescribed under Rule 22. Rule 20 of the Rules of 1991 details the step-by-step procedure to be followed for imposing major penalties, commencing with initiation of the inquiry by issuance of the articles of charge against the Government servant and concludes with submission of the inquiry report to the disciplinary authority. Rule 21 details the action to be taken on the inquiry report and reads thus:
''Rule 21. Action on the inquiry report - (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 20 as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(3) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in the sub-rules (4) and (5) below.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (v) of Rule 9 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 22, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(5) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 9 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.''
9. Rule 22, as stated earlier, details the procedure for imposing minor penalties. Rule 22(1) states that subject to the provisions of Rule 21(4), an order imposing a minor penalty on a Government servant shall be passed after informing such Government servant in writing of the proposal to take action against him and of the imputations of misconduct on which such action is proposed to be taken, duly giving him a reasonable opportunity of making a representation against such proposed action. The disciplinary authority is given liberty under Rule 22(2) to hold an inquiry in the manner laid down in Rule 20 (3) to (23), in every case in which the disciplinary authority opines that such inquiry is necessary. In the event the Government servant submits a representation to the proposed action or in the event an inquiry is held, the disciplinary authority has to take into consideration such representation and the record of the inquiry; enter its findings on each imputation of misconduct or misbehaviour; and take action thereafter. Rule 22(3) states that the record of the proceedings in such cases shall include:
(i) intimation to the Government servant of the proposal to take action against him;
(ii) the statement of imputations of misconduct;
(iii) the representation of the Government servant, if any;
(iv) the evidence produced during the inquiry, if any;
(v) the advice of the Commission, if any;
(vi) the findings on each imputation of misconduct by the disciplinary authority; and
(vii) the orders on the case together with the reasons therefor.
10. Rule 23 deals with communication of orders and states to the effect that the orders made by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the inquiry report, if any, held by the disciplinary authority and a copy of its findings on each article of charge, or, where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority and a statement of the findings of the disciplinary authority.
11. In the present case, the High Court initiated disciplinary proceedings against the petitioner by taking recourse to Rule 20 of the Rules of 1991, which clearly indicates that it proposed, at that stage, to impose a major penalty upon him. It is however admitted that after submission of the inquiry report dated 29.04.2014 by the District Judge (Enquiries) to the High Court; a copy thereof was neither furnished to the petitioner nor was his representation called for upon the finding recorded therein. A minor penalty was straightaway imposed upon the petitioner by the High Court after considering the material on record. Sri D. Prakash Reddy, learned senior counsel, would contend that this methodology is in utter violation of the procedure prescribed under Rule 21 of the Rules of 1991 and that the petitioner was put to irreparable loss thereby, as he was denied an opportunity to respond to the finding in the inquiry report before the disciplinary authority could take action thereon.
12. It cannot be disputed that it is within the power of the disciplinary authority, under the Rules of 1991, to initiate proceedings under Rule 20 for imposing a major penalty but opt finally for imposition of a minor penalty. This is clear from Rule 21(4) of the Rules of 1991, which provides that if the disciplinary authority, having regard to the findings on the charges, is of the opinion that a minor penalty should be imposed; it has the power to do so notwithstanding the provisions of Rule 22. Rule 22, in turn, begins by stating that subject to Rule 21(4), an order imposing a minor penalty on a Government servant may be passed after following the procedure prescribed thereunder.
13. Further, it is relevant to note that even under Rule 22 concerning minor penalties, it is open to the disciplinary authority to resort to holding an inquiry against the Government servant but significantly, the requirement prescribed under Rule 21 (2) of sharing the inquiry report with the Government servant, before recording final findings on each imputation of misconduct, is dispensed with under Rule 22. The representation of the Government servant received under Rule 22 (1)(a) along with the inquiry report, if any, is to be considered by the disciplinary authority for recording such final findings. It is only after a final order is passed imposing a minor penalty that such order along with a copy of the inquiry report, if any, and the findings of the disciplinary authority are to be communicated to the Government servant under Rule 23. There is no meaning otherwise to the mandate of supplying a copy of the inquiry report, if any, after passing of the order of penalty, as such inquiry report would have already been furnished to the Government servant calling for his representation under Rule 21(2) of the Rules of 1991, in the case of a major penalty.
14. It is however the contention of Sri D. Prakash Reddy, learned senior counsel, that once action was initiated against the petitioner by taking recourse to Rule 20, relating to imposition of major penalties, the High Court was bound to adhere to the procedure prescribed under Rule 21(2) and make available to the petitioner a copy of the inquiry report before it could proceed under Rule 21(4) and impose a minor penalty. Learned senior counsel would lay stress upon sub-rule (3) of Rule 21, which states that the disciplinary authority has to consider the representation, if any, submitted by the Government servant in response to the communication of the inquiry report, vis-a-vis the findings recorded therein before recording its own findings and proceeding further in the matter as specified in sub rules (4) and (5) of Rule 21.
15. The structuring of Rule 21 lends itself completely to the construction sought to be placed upon it by the learned senior counsel. Rule 21(2) mandates that the disciplinary authority shall forward a copy of the inquiry report to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority irrespective of whether the inquiry report is favourable to him or not. Rule 21(3) states to the effect that the disciplinary authority should consider the representation, if any, submitted by the Government servant under Rule 21(2) and thereafter record its findings before proceeding further in the matter as specified in Rule 21(4) and Rule 21(5). Under Rule 21(4), the disciplinary authority is entitled to impose upon the Government servant a minor penalty while Rule 21(5) empowers the disciplinary authority to impose a major penalty, having regard to its findings on the charges and on the basis of the evidence adduced during the inquiry.
16. Thus, in the context of the afore stated statutory milieu, the High Court was bound to furnish a copy of the inquiry report to the petitioner and require him, if he so desired, to submit his written representation or submission vis-a-vis the finding recorded against him in the said inquiry report. This procedure was admittedly not followed. However, the question that would then arise is as to the impact and consequence of this violation. Innate therein is the crucial question as to whether any prejudice was caused to the petitioner by virtue of this violation of the prescribed statutory procedure. It is now well settled that in disciplinary matters, a delinquent employee cannot assert that disciplinary action against him stands vitiated automatically because of violation of the statutory procedure or the principles of natural justice. It would be incumbent upon such delinquent employee to demonstrate the prejudice caused to him thereby.
17. In Managing Director, Ecil, Hyderabad v. B. Karunakar, (1993) 4 SCC 727, a Constitution Bench held that a delinquent employee is entitled to a copy of the inquiry report even if the statutory rules do not permit furnishing of the report or are silent on the subject; as such denial would amount to denial of reasonable opportunity and violate the principles of natural justice. Reference may however be made to para 31 of the judgment, wherein the Constitution Bench observed that in all cases where the inquiry report was not furnished to the delinquent employee, the Court should cause such report to be furnished to the aggrieved employee and give him an opportunity to show how he was prejudiced because of the non-supply of the report and if, after hearing the parties, the Court concludes that non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court should not interfere with the order of punishment. It was further held that the Court should not mechanically set aside the order of punishment on the ground that the report was not furnished and only if the Court finds that furnishing of the report would have made a difference to the result in the case it should set aside the order of punishment.
18. Thereafter, in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 the Supreme Court applied the law laid down in B. Karunakar (supra) and reiterated that in the event a copy of the inquiry report is not furnished to the delinquent employee, the validity of the order of punishment would have to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. The Supreme Court further held that it would not be correct to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further inquiry. The Supreme Court summarised its conclusions in para 33 of the judgment as under:
''33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ''void'' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.''
19. The Supreme Court ultimately concluded that justice means justice between both the parties and the interest of justice demands that the guilty should be punished; and that technicalities and irregularities, which do not occasion failure of justice, should not be allowed to defeat the ends of justice. Principles of natural justice were held to be a means to achieve the ends of justice and therefore, they could not be perverted to achieve the opposite end.
20. A Larger Bench of five Judges of this Court had occasion to deal with disciplinary proceedings held against a judicial officer in complete violation of the applicable rules in K. Swarna Kumari v. Government of Andhra Pradesh, (2006) 2 ALD 585. In the said case, disciplinary proceedings were initiated and conducted under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963 (for brevity, ''the Rules of 1963''), after the advent of the Rules of 1991, which had applicability and should have been followed. The majority opinion of Justice T. Meena Kumari, as the learned Judge then was, held that though the Rules of 1991 had to be observed and ought not to have been ignored, the complaint of the judicial officer against the punishment imposed by following the wholly inapplicable procedure under the Rules of 1963 would still have to be tested in the context of the relevant rule, as it is not that every breach of the rule would per se be a legal and justifiable ground for setting aside the punishment. It was further held that the party who alleges prejudice owing to violation of the statutory procedure must demonstrate that real prejudice has been caused.
21. In a separate concurring opinion, Justice Raghuram opined that whether the violation be of statutory rules or principles of natural justice, the prejudice doctrine would have to be applied as per the principles spelt out in S.K.SHARMA2. It was observed that earlier case law illustrated that the prejudice doctrine had application both in the context of natural justice as well as statutory rules, in terms of denial of opportunity being traceable to the principles of natural justice or the requirements of a statute or a statutory rule. The learned Judge further held that where the breach of the rule made no difference to the result, it would have to be said that no prejudice had been caused.
22. In the light of the afore stated legal position, it is manifest that mere violation of the statutory procedure under Rules 21(2) and 21(3) of the Rules of 1991 would not be sufficient in itself to invalidate the minor penalty imposed upon the petitioner. As already pointed out, the requirement of furnishing him the inquiry report would not have arisen had the proceedings been initiated under Rule 22 instead of Rule 20 of the Rules of 1991. The critical element which requires to be examined is whether he suffered any prejudice thereby, in terms of being denied a fair opportunity of putting forth his case.
23. In this regard, it may be noticed that the entire record of the inquiry along with the inquiry report was placed before the High Court at the time of consideration of the petitioner''s case, whereupon it was decided to impose a minor penalty upon the petitioner instead of a major penalty. The petitioner also examined himself as D.W.1 and marked 22 exhibits in evidence. All this material was placed before the High Court at the relevant time. The petitioner''s defence and his stand were therefore available for perusal and consideration.
24. As Sri D. Prakash Reddy, learned senior counsel, specifically contended that the High Court had failed to abide by the due procedure while taking a decision in the matter, the original record was called for. The minutes of the meeting of the Administrative Committee of the High Court on 30.10.2014 manifest that the Committee, while accepting the report of the inquiry officer, took a conscious decision that instead of proceeding to impose a major penalty upon the petitioner, it would be proper to impose a minor penalty on him by way of stoppage of two increments without cumulative effect. As pointed out by Ms. V.Umadevi, learned standing counsel for the High Court, the very same minutes demonstrate that, when dealing with the case of one N. Rajyalakshmi, Senior Civil Judge, the Committee recorded a decision to the contrary that the report of the inquiry officer was accepted and a show-cause should be issued, supplying a copy of the inquiry report, calling upon the officer to show-cause as to why she should not be imposed with the punishment of compulsory retirement from service.
25. It is therefore clear that the Administrative Committee took a mindful and informed decision after considering the entire material on record that the petitioner did not deserve a major penalty in spite of the adverse finding of the inquiry officer and therefore, the minor penalty of stoppage of his two increments without cumulative effect was visited upon him. As the Administrative Committee had all the material before it and was well aware of the stand of the petitioner, this Court finds that no prejudice can be claimed by the petitioner owing to denial of a copy of the inquiry report before a decision was taken. It is not as if the petitioner could have stated something new had he received a copy of the inquiry report as his stand was already on record. Further, it may be noted that the petitioner was furnished a copy of the said inquiry report in November, 2014, but he is unable to demonstrate before this Court even now as to how he suffered any prejudice owing to non-supply of the said report and how he could have improved his case before the disciplinary authority, had he been given a chance at that point of time.
26. On the above analysis, this Court holds that there was a violation of the statutory procedure under Rules 21(2) and 21(3) of the Rules of 1991 by the High Court while dealing with the case of the petitioner but no prejudice was caused by such violation warranting interference with the minor penalty imposed upon him.
27. The writ petition therefore fails and is accordingly dismissed. Pending miscellaneous petitions shall also stand dismissed. No order as to costs.
