@JUDGMENTTAG-ORDER
P. Jyothimani, J.@mdashThe writ petitioner has jointed as Sub Inspector of Police on 28.9.1987 and was promoted as Inspector of Police. In this writ petition he challenges the minor punishment imposed on him under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.
2.1. While the petitioner was working as a Sub Inspector of Police at Ammapet Police Station, on 22.2.1996, he was served with a charge memo under the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 and the charge relates to his investigation in Crime No. 815 of 1991 on the file of the Ammapet Police Station u/s 302 of the Indian Penal Code.
2.2. As Sub Inspector of Police, the petitioner has no jurisdiction to investigate an offence u/s 302 of the Indian Penal Code and it is only the Inspector of Police who is competent and therefore, according to the petitioner the very charge that the petitioner has done perfunctory investigation is not correct.
2.3. The petitioner has submitted his explanation for the charge on 3.3.1996 stating that originally the case was registered under Sections 341 and 325 of the Indian Penal Code and after the injured person died, it was converted as an offence u/s 302 of the Indian Penal Code on 4.8.1994; that since the Medical Officer was not present the petitioner has recorded the statement of the deceased u/s 161(3) of the Code of Criminal Procedure when the injured was in hospital in a stable condition; and that the investigation was done only by the Inspector of Police.
2.4. It is his further case that while the occurrence took place in the year 1991, the charge was framed after five years, namely in the year 1996, and the explanation of the petitioner was not properly considered. It is his case that even though Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 does not contemplate appointment of an Enquiry Officer or furnishing of enquiry report, the Deputy Superintendent of Police, Salem Town has prepared the enquiry report holding the charge against the petitioner as proved and agreeing with the report of the Enquiry Officer, the disciplinary authority, namely the fourth respondent has passed an order on 29.10.1996 imposing a punishment of postponement of increment for a period of one year without cumulative effect, without application of mind.
2.5. On an appeal preferred to the third respondent on 25.12.1996, the third respondent has modified the punishment into that of censure by order dated 27.3.1997. The further review preferred to the Inspector General of Police on 9.6.1998 was entertained by the second respondent and the same was rejected on 15.12.1998 without assigning any reason. The review petition filed before the first respondent under Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 was rejected on 1.2.2006 without acting as per the Rules. Therefore, none of the orders passed by the authorities are speaking orders.
2.6. It is the case of the petitioner that mere omission or commission or error of judgment or negligence simpliciter is not a misconduct by relying upon the judgment of the Supreme Court in
3.1. In the counter affidavit filed on behalf of the respondents, while it is admitted that the charge against the petitioner was issued under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 for the delinquency of perfunctory investigation conducted by the petitioner as Sub Inspector of Police in Crime No. 815 of 1991 on the file of the Ammapet Police Station u/s 302 of the Indian Penal Code, it is stated that as a Sub Inspector of Police, the petitioner has registered a case under Sections 341 and 325 of the Indian Penal Code on 3.8.1991 at 11 p.m. and investigated; that during the course of his investigation, he visited the scene of crime, drew observation mahazar, prepared rough sketch, examined witnesses and recorded their statements; that he has also recovered the material objects from the scene of occurrence; that after the death of the deceased Kumar, the offence was altered into one u/s 302 of the Indian Penal Code and express report was sent to the Inspector of Police for further investigation; and that the Sessions Judge, while acquitting the case, has made an adverse remark about the perfunctory investigation on the part of the petitioner and therefore, the petitioner was inflicted with the charge and departmentally punished.
3.2. It is stated that when the statement u/s 161(3) of the code of Criminal Procedure was recorded from the injured he was in a critical condition from 1.45 p.m. and the same has been found by the Sessions Judge in his judgment and there was no adverse comment against the Inspector of Police, since he commenced investigation only after the death of the deceased. It is stated that the petitioner alone was responsible for acquittal of the accused in the said case due to his improper investigation and therefore, the charge memo was issued and there was no wilful delay in framing charge, since the charge was framed only after the judgment was pronounced by the Sessions Court. The punishment of postponement of increment for a period of one year without cumulative effect was passed on 29.10.1996 by the fourth respondent on the proved charge and on appeal it was modified as censure by the third respondent.
3.3. It is stated that the Sessions Court has found flaw in the investigation by the petitioner on various counts, including that the petitioner has failed to get attestation from the duty Medical Officer while recording statement from the injured on 3.8.1991 at 10 p.m; that the petitioner has not given satisfactory explanation for the delay of six days in registering the case; that the murder weapon was not well connected with the accused; that no steps were taken by the petitioner to record the dying declaration of the injured; that it was highly improbable of recording statement u/s 162 of the Code of Criminal Procedure from the injured on 4.8.1991 at 2 a.m. when his condition was serious.
3.4. It is also stated that the judgment of the Supreme Court relied upon by the learned Counsel for the petitioner is not applicable because that was a case of 11 years delay in framing the charge sheet. According to the respondents, no principle of natural justice has been violated and all opportunities have been granted to the petitioner. It is stated that copy of minutes has to be given only in cases of punishment of reduction, suspension, compulsory retirement, removal and dismissal and in other cases, copies will be given only on application. In respect of minor penalties, the rule contemplates only giving of reasonable opportunity of making any representation and the petitioner was given reasonable opportunity to defend and there is no violation of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 or the principles of natural justice.
4.1. The main point which is raised by Mr. K. Venkataramani, learned senior counsel appearing for the petitioner is that the report of the Enquiry Officer has not been furnished. For that proposition, he would rely upon the judgment in Nawabkhan v. Superintendent of Police [2008] 7 MLJ 1275 which relates to a charge framed under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which is similar to Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.
4.2. He would submit that if there is any prejudice that will be caused if the report of the Enquiry Officer is not submitted, the same is a violation of principles of natural justice, by relying upon the judgment of the Division Bench of this Court in
5.1. On the other hand, it is the contention of Mr. R. Murali, learned Government Advocate appearing for the respondents that under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 there is no enquiry contemplated and therefore, the question of supply the report of the Enquiry Officer does not arise. It is also his case that this point of non supply of report of Enquiry Officer has not been raised by the petitioner at any point of time throughout. In the circumstances that no enquiry is contemplated under the Rules and that the petitioner himself has not raised anything about the report of Enquiry Officer, it is his submission that no prejudice is caused by non furnishing the report of the Enquiry Officer to the petitioner.
5.2. It is his submission that, in fact, the petitioner is aware of the report of the Enquiry Officer as he has filed the same in the typeset of papers which shows, according to him, that by non furnishing the report of the enquiry officer no prejudice has been caused to the petitioner. He would rely upon the judgment of the Supreme Court in State of
6. Before going into the merits of the legal submissions made by the learned Senior Counsel appearing for the petitioner, it is relevant to consider some of the factual aspects involved in this case.
7.1. The charge against the petitioner which was framed on 10.2.1996 was "gross neglect of duty in having done perfunctory investigation in Ammapet Police Station Crime No. 815/1991 u/s 302 of the Indian Penal Code resulting in acquittal on 26.3.1993 by the Sessions Judge, Salem". The basis of the charge is that in respect of an offence in Crime No. 815 of 1991, on 3.8.1991, when the petitioner was Sub Inspector of Police, he has registered a case originally under Sections 341 and 325 of the Indian Penal Code and investigated. He has recorded statement u/s 162 of the Code of Criminal Procedure on 4.8.1991 at 1502 hours and it is also not in dispute that on the same day, namely on 4.8.1991 the injured died and there was a delay of six days in registering FIR. In respect of that case, which was tried by the Sessions Judge in S.C. No. 28 of 1993, since in the meantime the offence was converted into one u/s 302 of the Indian Penal Code, the accused was acquitted on 26.3.1993. In the judgment, the Sessions Court has commented about the way of investigation done by the petitioner. It was based on the finding of the Sessions Court, the charge came to be framed against the petitioner on 10.2.1996, by initiating departmental proceedings against him.
7.2. The reply given by the petitioner for the charge is that when he was recording the statement u/s 161(3) of the Code of Criminal Procedure, the injured was conscious and therefore, there was no occasion for him to presume that he would die, so as to get a dying declaration by a Magistrate. It is also his case that when the injured was admitted in the hospital on 3.8.1991 he was only treated as an out-patient. In respect of the filing of the FIR with delay of six days, it was the explanation of the petitioner that the injured was beaten up on 29.7.1991 at Ammapet and he took private treatment since the individuals who have beaten him are all his relatives and therefore, immediately when the incident took place, namely on 29.7.1991 there was no complaint. It was only when the condition of the injured became serious, he was taking treatment in the Government Hospital on 3.8.1991 and after receiving information, immediately the petitioner has registered the FIR and therefore, there cannot be delay between the date of occurrence namely 29.7.1991 and registering dated 3.8.1991, since the incident itself was brought to the notice of the police only on 3.8.1991 and hence, there was no delay and the acquittal was on the benefit of doubt. It is his case that the delinquency was on 3/4.8.1991, the judgment was pronounced by the Sessions Court on 26.3.1993 and the charges have been framed on 10.2.1996 and therefore, there is a delay of three years in framing charges, which, according to the petitioner, is against the circulars issued by the Government as well as the other judgments.
7.3. The Enquiry Officer, in his report dated 26.8.1996, has found that when the petitioner has recorded statement of the injured on 3.8.1991, no attestation was obtained from the duty Medical Officer nor any private witness has signed in the statement and it was in those circumstances, the Deputy Inspector General of Police, Vellore Range has found that the petitioner has committed lapses in investigation and suggested to initiate departmental proceedings against him. The Enquiry Officer has also found that the petitioner has failed to connect the murder weapon (reaper) with the accused and concurring with the finding of the Enquiry Officer and finding that obtaining of attestation of the duty Medical Officer while recording the statement is mandatory and that the petitioner has not take efforts to record the dying declaration of the deceased through the Magistrate, the fourth respondent has awarded the punishment of postponement of increment for a period of one year without cumulative effect.
7.4. On appeal, the third respondent while reducing the punishment to censure has given the following finding:
2. The appellant was inexperienced Police Officer of 4 years standing at the time of commission of these lapses. No bad motive can be attributed to him for these lapses in investigation and it is only due to inexperience, he has failed to investigate the case thoroughly, fulfilling all legal requirements. Considering these facts, the punishment awarded is rather excessive. Therefore, I modify the punishment of postponement of increment for a period of one year without cumulative effect as "CENSURE".
and that was subsequently confirmed in the review as well as on further representation. In fact, while disposing of the review petition, the second respondent has found as follows:
2) I have carefully gone through the petition alongwith all connected records. There is no merit in this petition. The charge is rightly held as proved and the modification ordered by the appellate authority are just and proper. I decline to interfere with the same in the absence of any valid ground.
and ultimately, the petition to the Government was rejected on 1.2.2006 with the following finding:
3. The Government have carefully and independently examined the petition of the individual with relevant records. He has adduced no fresh points for consideration and found that no further dilution of the punishment is required. The Government have decided to reject the petition of the individual as devoid of merits. Government accordingly order that the petition of Thiru K. Muniappan, Inspector of Police against the modified punishment of "Censure" imposed in PR.201/95 be rejected as devoid of merits.
8.1. Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 which are relating to imposing of minor punishments on the delinquent officers are similar in pari materia. To appreciate the same, the said relevant rules are extracted as follows:
Rule 17.(1)(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955: In every case where it is proposed to impose on a member of a service or a person holding a civil post under the State any of the penalties specified in items (i), (ii), (iii), (v) and (ix) in Rule 8 or in Rule 9, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed:
Provided that the requirements of this sub-rule shall not apply where it is proposed to impose on a member of a Service any of the penalties aforesaid on the basis of facts which have led to his conviction by a Court Martial or where the officer concerned has absconded or where it is for other reason impracticable to communicate with him:
Provided further that, in every case where it is proposed, after considering the representation, if any, made by the Government servant, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withhold increments of pay without cumulative effect for a period exceeding 3 years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in Sub-rule (b) shall be followed before making any order imposing on the Government servant any such penalty.
Rule 3(a) of Tamil Nadu Police Subordinate Servic (Discipline and Appeal) Rules, 1955: In every case where it is proposed to impose on a member of a service any other penalties mentioned in Clauses (a) (b) (c) (e) and (f) of Rule 2, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed:
Provided that the requirement of this sub-rule shall not apply where it is proposed to impose on a member of a Service any of the penalties aforesaid on the basis of facts which have led to his conviction by a Court Martial or where the officer concerned has absconded or where it is for other reasons impracticable to communicate with him:
Provided further that in every case where it is proposed, after considering the representation, if any, made by the member of the Service to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the member of the Service or to withhold increment of pay without cumulative effect for a period not exceeding 3 years or to withhold increment of pay with cumulative effect for any period, the procedure laid down in such Rule (b) shall be followed before making any order imposing on the member of the Service any such penalty.
8.2. The above said Rules contemplate a reasonable opportunity to make a representation to be given to the delinquent and in cases where the punishment is sought to be imposed in respect of retired government servant or retired member of service which is dealt with under the Tamil Nadu Pension Rules, which would adversely effect on the amount of pension, the procedure contemplated under Rule 17(1)(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 are to be followed. The procedure under the said Rules 17(1)(b) and 3(b) respectively include framing of charges, giving opportunity to file written statement of defence, conducting of enquiry with oral evidence, recording the same and preparing a report of enquiry, furnishing the same, etc., while such rigorous procedure is not contemplated under Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955.
8.3. On the facts and circumstances of the present case, originally, the petitioner was inflicted with a punishment of postponement of increment for a period of one year without cumulative effect, which was subsequently reduced to that of censure and therefore, no enquiry is contemplated as per Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955.
8.4. The contention of Mr. K. Venkataramani, learned senior counsel for the petitioner is that the accident register shows that on 3.8.1991 at 11.30 a.m., the injured was conscious and his pulse rate was normal and therefore, there was no occasion for the petitioner to suspect the death of the injured on the next day, so as to obtain dying declaration through the Magistrate. A reference to the accident register shows as follows:
11.30 AM 3-8-91 .... O/E Pt is conscious, restless Pulse 80/mt. V&T fair Abdomen: Distended Tenderness over whole abdomen
8.5. However, the charge is not only relating to the failure to obtain dying declaration through Magistrate, but also that the statement obtained from the injured u/s 161(3) of the Code of Criminal Procedure was without the attestation of the Medical Officer and the same stood uncontroverted and therefore, on fact, it is not possible to accept the contention of the learned senior counsel for the petitioner that there is no ground for passing any order of punishment against the petitioner or that the punishment is perverse.
8.6. Even though under Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 no enquiry is contemplated, since only a reasonable opportunity is required, the fact remains that in this case the Deputy Superintendent of Police, Salem Town was appointed as the Enquiry Officer and he has, in fact, conducted an enquiry and prepared a report. A reference to the impugned order of the fourth respondent imposing the punishment also shows that he has referred to the report of the Enquiry Officer which is evidenced from the portion of the impugned order dated 29.10.1996 which is as follows:
2. I concur with the findings of the enquiry officer and award the punishment of postponement of increment for a period of one year without cumulative effect.
8.7. It also remains a fact that the report of the Enquiry Officer has not been furnished to the petitioner. The stand taken by the respondents for that is that under Rule 3(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 no enquiry has been contemplated and therefore, the delinquent has no right to have the report of the Enquiry Officer and the non production of the report of the Enquiry Officer is not fatal to the disciplinary proceedings. It is relevant to point out at this stage that the Enquiry Officer appointed in this case is different from the disciplinary authority, namely the fourth respondent.
9.1. In the above said backdrop, the question to be decided is even in respect of imposing of minor penalties, the report of the Enquiry Officer is to be furnished to the delinquent or not?
9.2. Under such circumstances, it was held by this Court in Nawabkhan v. Superintendent of Police [2008] 7 MLJ 1275, while dealing with a charge under Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by relying upon the judgments of the Supreme Court in
11. The above rulings will make it very clear that when the enquiry officer is not the disciplinary authority, the petitioner delinquent has got a right to have a copy of the report of the enquiry officer before the disciplinary authority arrives at a conclusion with regard to the guilt or innocence of the delinquent with regard to the charges levelled against him. A denial of the report is a denial of reasonable opportunity. It is a right of an employee to have the report of the enquiry officer to defend himself effectively, otherwise he would not know in advance whether the report is in his favour of against him and what is held against him. If the report is furnished to him, he could have persuaded the disciplinary authority that the finding arrived at by the enquiry officer is perverse or that the finding is based on no evidence or irrelevant materials and evidence. Definitely it would cause prejudice to a delinquent, if the report is not furnished to him. Hence, for the reasons sated above, I am in full agreement with the learned Senior Counsel appearing for the petitioner that non-furnishing of the report of the enquiry officer has vitiated the entire proceedings.
9.3. While dealing with Rule 37 of the Central Industrial Security Force Rules, 2001, which is as follows:
37. Procedure for imposing minor penalties:
(1) No order imposing any of minor penalties specified in Rule 34 shall be made except after:
(a) informing the enrolled member in writing of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he wishes to make against the proposal;
(b) holding an inquiry, if the disciplinary authority so desires, in the manner laid down in Sub-rules (3) to (22) to Rule 36;
(c) taking the representation, if any, submitted by the enrolled member under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration; and
(d) recording the findings on each imputation of misconduct or misbehaviour.
which again is in pari materia with that of Rule 17(1)(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, the Division Bench of D. Murugesan and C.S. Karnan, JJ. in N. Subramanian v. Group Commandant, CISF and Anr. 2009 Current Indian Judgments 739 (Madras) held that even in cases of imposing minor penalties, the disciplinary authority has to give opportunity to the delinquent employee, conduct enquiry to prove the charges and indicate reasons for punishment.
9.4. Again, while dealing with the same Rule 37(1)(b) of the Central Industrial Security Force Rules, 2001, the very same Division Bench of this Court in
7. When the petitioner specifically refutes the charges framed against him, it is but proper for the disciplinary authority to indicate the reasons in writing as to why the enquiry is dispensed with on the facts of the given case. This is more so because the authority is duty bound to consider the imputation of the misconduct or misbehaviour committed by the delinquent officer, the explanation offered by him and the relevant records to satisfy himself as to whether an enquiry is necessary or not in terms of Rule 37(1)(b) of the Rules. On the facts of this case, the explanation of refutal of the charges was not accepted and findings were rendered in the impugned orders holding that the charges were proved without assigning any reason. In our considered view, such a procedural lapse would defeat the valuable right of a delinquent employee to establish his case as to the imputation. In fact, the question of affording opportunity even for imposition of minor penalty came up for consideration before this Court in W.P. No. 34587 of 2005 dated 1.4.2009 and this Court, following the judgment of the Supreme Court in O.K. Bhardwaj v. Union of India and Ors. 2002 SCC (L&S) 188 : 2002-IV-LLJ (Suppl) 836, held that such an enquiry is mandatory, where the charges are refuted by the delinquent, and remitted the matter to the authorities for conduct of enquiry.
9.5. However, on the facts and circumstances of the present case, it is not in dispute that a detailed enquiry was conducted by the Enquiry Officer and therefore, the petitioner cannot have any grievance about the nature of enquiry conducted.
9.6. In S. Selvarajan v. The Superintendent of Police, Nagai Quaide-E Milleth District, Nagapattinam (Order dated 28.1.2009 made in W.P. No. 29705 of 2006), S. Nagamuthu, J., while dealing with a non speaking order of punishment stating "I award him the punishment of censure", which was under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, has held that even in respect of minor penalties, the disciplinary authority has to pass speaking order and accordingly, set aside the order and remanded the matter.
9.7. On the facts of the present case, the fourth respondent/Original Authority, while concurring with the report of the Enquiry Officer, has applied its mind and passed order with reasons, which is as follows:
I have carefully gone through the charge memo and all connected records. The delinquent has failed to obtain the attestation of the duty medical officer, while recording the statement of the deceased, which is a mandatory one. The defence taken by the delinquent that the duty medical officer was not available at that time to attest the statement cannot be accepted in the absence of material evidence. Further, the S.I. Of Police did not take any effort to record the dying declaration of the deceased through the Magistrate, as his condition was bad at that time. The delinquent could not give any satisfactory explanation in his deposition in the court for the delay of 6 days in registering the FIR.
2. I concur with the findings of the enquiry officer and award the punishment of postponement of increment for a period of one year without cumulative effect.
9.8. Therefore, the original order of punishment passed by the fourth respondent cannot be said to be a non-speaking order.
10.1. The next point which is to be decided is about the furnishing of the report of the Enquiry Officer to the delinquent in respect of the minor penalties which has to be decided in the light of the facts of the present case, namely that even though under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 there is no express clause enabling the delinquent to get the report of the Enquiry Officer or for conducting an enquiry through an Enquiry Officer, nevertheless, an Enquiry Officer was appointed, who is different from the disciplinary authority, and he submitted his report to the fourth respondent, who is the disciplinary authority, who has not, in fact, conducted the enquiry, but passed the order of punishment based on the report of the Enquiry Officer.
10.2. This question came to be elaborately considered by the Supreme Court in
6. The provisions of Article 311(2) were further amended by the Constitution (Forty-second Amendment) Act, 1976 in which it was expressly stated that ''it shall not be necessary to give such person any opportunity of making representation on the penalty proposed''. The Forty-second Amendment while retaining the expanded scope of the ''reasonable opportunity'' at the first stage viz. during the enquiry, as introduced by the Fifteenth Amendment of the Constitution, had taken away the opportunity of making representation against the penalty proposed after the enquiry. After the Forty-second Amendment, a controversy arose as to whether, when the enquiry officer is other than the disciplinary authority, the employee is entitled to a copy of the findings recorded by him before the disciplinary authority applied its mind to the findings and evidence recorded or whether the employee is entitled to the copy of the findings of the enquiry officer only when the disciplinary authority had arrived at its conclusion and proposed the penalty. After the Forty-second Amendment, there were conflicting decisions of various High Courts on the point in issue and in some of the two-Judge Bench decisions of this Court, it was held that it was not necessary to furnish copy of the enquiry report. Thus for an authoritative pronouncement, the matter was placed for consideration before a three-Judge Bench in the case of Mohd. Ramzan in which it was categorically laid down that a delinquent employee is entitled to be furnished with a copy of the enquiry report for affording him a reasonable opportunity as required under Article 311(2) of the Constitution and in compliance with the principles of natural justice, and in case no such report was furnished, the order was fit to be quashed, but it was directed that the judgment shall be prospective and would have no application to orders passed prior to the date of judgment in Mohd. Ramzan case.
10.3. When there was a conflict between the earlier judgment of the Supreme Court in
(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary enquiry are silent on the subject or are against it?
(ii) Whether the report of the enquiry 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?
(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?
(iv) Whether the law laid down in Mohd. Ramzan Khan case will apply to all establishments - government and non-government, public and private sector undertakings?
(v) 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?
(vi) From what date the law requiring furnishing of the report, should come into operation?
(vii) Since the decision in Mohd. Ramzan Khan case has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20-11-1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20-11-1990?.
10.4. While dealing with question No. (v) relating to the effect of non-furnishing of the report on the order of punishment, the Constitution Bench of the Supreme Court, taking note of the fact that the reasonable opportunity and principles of natural justice "are not incantations to be invoked nor rites to be performed on all and sundry occasions", has laid down the theory of "prejudice" to be proved by the employee on account of the denial to him the report of the Enquiry Officer and held as follows:
The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such 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 enquiry 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.
Hence, 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 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 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.
10.5. That portion of the decision of the Constitution Bench of the Supreme Court has been highlighted in paragraph (8) of the decision in State of U.P. v. Harendra Arora, supra, and ultimately, the Supreme Court in Harendra Arora case, supra, has explained the effect of the Constitution Bench judgment as follows:
23. Thus, from a conspectus of the aforesaid decisions and different provisions of law noticed, we hold that the provision in Rule 55-A of the Rules for furnishing a copy of enquiry report is a procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non-observance and consequently the law laid down by the Constitution Bench in the case of ECIL case to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing a copy of enquiry report under the statutory provisions and/or service rules.
thereby holding that the disciplinary proceedings cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, unless the delinquent proved the prejudice caused to him by non-furnishing of such report.
10.6. That was also followed by a Division Bench of this Court of Dharma Rao Elipe and S. Tamilvanan, JJ. in Union of India v. C.V. Anantharaghavan, 2007 [3] CTC 337, reiterating the law laid down by the Supreme Court in Harendra Arora case, supra, stating that the delinquent must show prejudice caused to him due to the non-furnishing of the report of the Enquiry Officer.
10.7. In this regard, it is relevant to examine on the facts of the present case as to whether the petitioner has brought out the prejudice caused to him by non-furnishing of the enquiry report by the Enquiry Officer, who is different from the disciplinary authority. As stated above, based on the report of the Enquiry Officer dated 26.8.1996, which has not been communicated to the petitioner, the fourth respondent has passed the original order of punishment on 29.10.1996. As against the said order, the petitioner has filed a statutory appeal before the third respondent on 25.12.1996, as it is referred to in the order of the third respondent dated 27.3.1997 in which he has reduced the punishment to that of censure. Even though that appeal petition dated 25.12.1996 filed by the petitioner before the third respondent is not available, a reference to the review petition filed by the petitioner dated 9.6.1998 to the Inspector General of Police, which is in the typeset of papers, wherein he has referred about his appeal to the third respondent dated 25.12.1996, shows that nowhere he has explained about any prejudice that has been caused to him by non-furnishing of the report of the Enquiry Officer. Even in the review petition filed by the petitioner to the first respondent dated 19.8.2005, the petitioner has not explained anything about the prejudice that has been caused to him by non-furnishing of the report of the Enquiry Officer, except stating that the punishment has affected his future career, which is as follows:
G. The punishment imposed has affected my future career and promotional aspects. Actually my promotion to the rank of Inspector of Police was considered after a period of one year while my juniors have been promoted
on their due dates. Due to this I have lost my seniority which would affect all my further promotional aspects.
10.8. This cannot be considered as a claim of prejudice against the non-furnishing of the report of the Enquiry Officer. Even in the affidavit filed by the petitioner in support of this writ petition, the petitioner has only chosen to state that as per the decision of the Supreme Court and order of the Director General of Police, copy of report of Enquiry Officer has to be furnished to the delinquent before imposing punishment under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955 and has not stated about any prejudice that has been caused to him by non-furnishing of such copy of the report. The ground relating to the same in the affidavit is as follows:
d) No proper enquiry was conducted before imposing the punishment order. As per the decision of the Supreme Court and the order of the Director General of Police, copy of the enquiry report has to be furnished to the delinquent, before imposing the punishment, even for a minor punishment Under Rule 3(a).
10.9. Bereft of such stand taken by the petitioner in respect of prejudice, on the factual matrix of this case, it is not known as to what prejudice has been caused to the petitioner in the disciplinary proceedings in not receiving the report of the Enquiry Officer before the original order of punishment was passed against him by the fourth respondent on 29.10.1996. The alleged failure of proper investigation by the petitioner which has been in detail explained in the report of the Enquiry Officer was admittedly the result of the judgment of the Sessions Court, in which the accused was acquitted and the judgment therein was rendered as early as 26.3.1993 in S.C. No. 28 of 1993 and therefore, there was no new point that was explained in the report of the Enquiry Officer. The petitioner, having filed a copy of the report of the Enquiry Officer in the typeset of papers, has not even chosen to explain even at this point of time as to what is the prejudice caused to him by non-furnishing of the report of the Enquiry Officer.
11.1. The only other point which may assume significance is that when the occurrence of assault in which injury was caused to the victim has taken place on 29.7.1991 and the same was brought to the notice of the petitioner only on 3.8.1991, the FIR was registered on the same day and there is no delay and that cannot be a ground for disciplinary proceedings.
11.2. In this regard, it is relevant to point out that that was the case of the petitioner by way of explanation dated 3.3.1996 submitted to the fourth respondent to the charges framed and therefore, it cannot be stated that any prejudice has been caused to him in that regard.
12. In such view of the matter, I am of the considered view that on the facts and circumstances of the case, wherein there is no proof to show that any prejudice has been caused to the petitioner nor the petitioner has raised such an issue, it is not possible to accept the contention of the learned senior counsel for the petitioner and as stated by the Supreme Court, furnishing of report of Enquiry Officer, especially when it relates to minor punishment, wherein it requires reasonable opportunity to the delinquent, cannot be an automatic process in all cases, except in cases of gross prejudice that is proved.
For the foregoing reasons, the writ petition fails and the same is dismissed. No costs.
