S. Ravindra Bhat, J.@mdashThe Writ Petitioner seeks quashing of an Order dated 30.6.1980, dismissing him from the services. The order was issued by the second Respondent National Hydro Electric Power Corporation Ltd. (hereafter referred to as ''the NHPC'')
2. The facts as far as they are not disputed are that the Petitioner was appointed as an Instructor by the Central Water Power Commission (CWPC) on 14.10.1963. He was declared a quasi permanent employee on 14.10.1966. As per instructions of the CWPC he was transferred from the Technical Training Centre, Nagarjuna Sagar Dam to the Baira Siul Hydro Electric Project by an Order dated 27.2.1974. It appears that the Technical Training Centre of the CPWC was closed down with effect from 28.2.1974 and Instructors like the Petitioner were declared surplus. By an Order dated 2.5.1974, such Instructors who had reported for duty were appointed on a temporary basis. A relevant part of the said Order dated 2.5.1974 reads as follows:
The Project has no post of Instructors. The comparable post would be that of Supervisors. Following statement shows the comparative essential qualifications and scale of pay for the two posts:
INSTRUCtorS
SUPERVISORS
Essential qualifications metric and course of two Metric/Higher Second-years as Mechanic from dairy 3 years'' diploma recognised I.T.I. and in any Branch of Engg. Training in heavy earth- viz. Civil/Mech/Elect.moving equipment. from recognised Institution. Scale of Pay : 425-640 425-700
In view of the ample utility of these people in the project it is proposed to appoint the Instructors who have already reported for duty against the post of Supervisors as a temporary measure. There are 12 posts of Civil and 21 vacant posts of Electrical Supervisors in the Project and 48 more posts of supervisors are being sanctioned.
The Instructors who have already reported viz. Shri R.M.Ahluwalia and Shri K.C.Kohli are being appointed on an ad-hoc basis as Supervisors. One more Instructor is expected to join during this week. In view of this, it is requested that approval may kindly be accorded for the employment of three Instructors.
3. A consequential order appointing the Petitioner as Supervisor was issued on the same day namely 2.5.1974. That order reads as follows:
OFFICE ORDER
Consequently upon their transfer vide TTC''s No. closure/TTC/74 dated 28.2.74 Service of R.N.Ahluwalia dn K.C.Kohli, Instructors of TTC.CH and PC Mangal Township/Nagar Jamnagar Dam, to this project they have joined their duties with effect from 11.3.74 and 16.3.74 respectfully. They are hereby appointed as Supervisors in the scale of Rs. 425-15-500-KB-15-560-20-700 on adhoc basis for a period of six months.
Sd/
Chief Engineer,
Baira Siul Hydel Project,
Surangani, Distt. Chamba (H.)
4. In the meanwhile the NHPC was incorporated as a Government company. By a Conveyance Deed dated 20.1.1978, a Baira Siul Hydro Electric Project was handed over and transferred to the NHPC. The transfer deed dated 20.1.1978 contained stipulations as to the transfer of employees existing in the project. Relevant portion of the conditions are extracted below:
And this Deed further witnesseth that the vendor and the corporation have in consideration aforesaid agreed that all deputationist employees engaged i nt he Baira Siul Project will continue to be on deputation to the corporation on the respective existing terms and conditions of their deputation to the project and that the direct recruits and workcharged employees of the Baira Siul Project will be transferred to the corporation with effect from the date of transfer of the Project on the terms and conditions to be determined by the corporation. And that the pay and allowances and all other dues of every nature and kind of all the said employees transferred to or taken over by the corporation shall be paid by the corporation and the corporation shall indemnify and always keep the vendor indemnified and harmless against all claims and demands whatsoever concerning or relating to such pay and allowances and other dues. And it is further agreed that the corporation shall arrive at an agreement with all the employees who stand transferred to the corporation about their respective terms and conditions of service and that the vendor shall at all times be free from all claims, demands and liabilities of the employees and the corporation shall at all times be liable to the employees for all their lawful claims and demands.
5. The Petitioner was issued with a memorandum and articles of charges alleging misconduct by him. He resisted the charges and an Inquiry Officer was appointed on 11.10.1976. There were six articles of charge. Except one charge the Inquiry Officer held the Petitioner guilty of the charges, in his report dated 10.1.1979. By Order dated 30.6.1980 the penalty of removal from service was imposed upon the Petitioner. He appealed to the Chairman and the Managing Director of the NHPC, who after considering the same rejected it. The rejection of appeal was communicated by an order dated 1.9.1981.
6. The Petitioner impugns the order of removal as well as the departmental proceedings primarily on two grounds. It is alleged that NHPC could not have dealt with or taken any disciplinary action against him since the Petitioner''s lien continued with the Central Government in view of his being declared a quasi permanent employee in the CWPC. The second ground is that the records disclose that there were no materials or evidence to hold the Petitioner guilty of the charges leveled against him and that the order of both the disciplinary and the appellate authority were vitiated for non-application of mind; they are also non-speaking orders.
7. The NHPC, in its return has averred that the Petitioner was an employee of the CWPC, in its Technical Training Centre, Nagarjuna Sagar Dam. That training centre was closed with effect from 28.2.1974 and the Petitioner''s services were declared surplus. Resultantly, he was relieved of his duties and directed to report at the Baira Siul Project. The appointment in the project was on ad hoc basis, in the first instance for a period of six months with effect from 16.3.1974. It was Therefore contended that the Petitioner ceased to be an employee of CWPC upon his ad hoc appointment in the project. It was averred that the Petitioner never worked as a deputationist or borrowed employee so as to be treated as a permanent employee continuing with his lien in the CWPC. The NHPC asserts that it had competence or jurisdiction to deal with in disciplinary matters pertaining to the Petitioner''s service.
8. It is alleged that on 21.6.1976, the Executive engineer in charge of the mechanical division, Pathankot was informed that some steel materials of the project had been sold in the local market. This led to a detailed, on the spot inquiry and physical verification of all the stores. Eventually, a charge sheet was issued and disciplinary proceedings were initiated against the Petitioner. The NHPC denies that there were no materials to support findings of guilt, or that the disciplinary authority did not apply its mind to the facts of the case. The petitioner''s allegation that he was not permitted nor given proper opportunity in the during of the inquiry or that his statement was not recorded has been denied. It has alleged that the Inquiry Officer considered all the evidence including the statement of 8 witnesses as well as the materials produced on behalf of the Petitioner. On an overall consideration of the materials the Inquiry Officer held the Petitioner guilty of the charges. It was alleged that there were sufficient materials and evidence to support the findings of the Inquiry Officer. The NHPC has contended that the Court would not be justified in appreciating the evidence. It has also been averred that the report took into consideration the statements and the admissions of the Petitioner, who had in clear terms, in a written statement dated 29.6.1976, admitted that there was no indent for the material released by him. He had sought to justify his action upon oral instructions, of one Ganga Dyal.
9. Mr. P.P.Khurana, learned senior counsel, submitted that the NHPC had no jurisdiction to initiate departmental proceedings as it was not the Petitioner''s employer. It was contended that the impugned order was a clear case of coram non judice since Petitioner''s lien continued with the Central Government. Such being the case, he could not have been dealt with by the NHPC which under no circumstance acquired the status of his employer. He placed reliance upon the provisions of the Conveyance Deed by which deputationists and transferees to the project were to be absorbed. It was submitted that till formal absorption by the NHPC, the Petitioner''s lien with the CWPC continued and he could not have been dealt with in disciplinary matters, by the NHPC.
10. Learned Counsel relied upon judgment of the Supreme Court reported as
11. Learned Counsel submitted that the allegations in Article 1 and 2 were about shortages/excesses in the stores, which had not been duly intimated. It was submitted that there is absolutely no evidence of any shortage/excess. The alleged shortage/excess was itself based on intimation given by Work Assistants and the petitioner was misled by this intimation. As a matter of fact, no actual shortages/excesses were found. There was no unauthorised transactions leading to replacement of excess steel by steel materials which were in shortage. In the reply filed by the respondents, it is stated that physical verification by all the stores of Baira Soil Project was ordered by the Chief Engineer to ascertain the position of the store balance in hand. It was submitted that no evidence was led to indicate the result of such a physical verification. Counsel contended that a consideration of evidence shows that not only defense witnesses but all the prosecution witnesses deposed that there was no shortage or excess in the stores under the supervision of the petitioner at the relevant time. The Inquiry officer too, in his report relied upon the statement of the petitioner, stating that there was no shortage/excess. He only stated that, ''there is no basis to believe that shortages/excess if any, in the stores were not in the knowledge of Sh. K.C.Kohli.''
12. Counsel submitted that it is clear that the Inquiry report had not established any shortage/excess and the same according to him is, ''IF ANY''. Thus there is no finding of Articles I and II being proved. It was further contended that Article III relates to opening of stores surreptitiously on Sunday without permission of the Assistant Engineer (AE) and issuing materials without the presence of Work Assistants. Counsel for Petitioner submitted that there was ample evidence of the prosecution witnesses that Stores used to be opened on Sundays and no permission of any superior authority was required. DW2 had also deposed like wise. The Inquiry Officer went beyond the charges by holding that there was no urgency necessitating to issue the materials on Sunday. The other findings are perverse, without a discussion of evidence on record.
13. It was contended that Article IV and V related to fictitious entries in the challan book. The findings were that while there was fictitious entry, only a hand writing expert could prove it. His further observation that it was most probably done by the petitioner is at best a conjecture and a suspicion-a conclusion not drawn from facts. It is thus clear that Article IV and V have not been proved against the petitioner. In so far as the Article VI is concerned, the finding of Inquiry Officer was that it was not proved.
14. Counsel contended that the infirmities amounted to the inquiry not being based on any evidence. As a result the findings of the Inquiry Officer were vitiated. He relied upon the judgments of the Supreme Court reported as
15. It was also submitted that NHPC could not have invoked the CCS (CCA) Rules, 1965 which did not govern the organisation. Counsel submitted that there was violation of Rules 14(18) and (23) because neither was the Petitioner examined upon the statement nor did the Inquiry Officer prepare his report in accordance with the Rules. It was also submitted that the examination of the Petitioner by the Presenting Officer was not in accordance with the Rules. Counsel also objected to recording of evidence by the respondent after conclusion of depositions by the defense witnesses.
16. Counsel objected to the reliance placed upon the preliminary statement, made by the Petitioner. He relied upon the judgment reported as
17. Mr. Taneja, learned senior counsel appearing on behalf of the respondent submitted that the contention about NHPC lacking competence or jurisdiction to initiate departmental proceedings on the ground that the Petitioner''s lien continued with the Central Government, is baseless and misplaced. It was submitted that with the closure of the Technical Training Centre on 28.2.1974, employees working there were declared surplus. The Petitioner''s services too were similarly declared surplus. As a measure of rehabilitation, he was sent to the project which placed him in its services on ad hoc basis with effect from 16.3.1974 as a Supervisor, since his existing designation and terms and conditions were not compatible with what existed in the NHPC. He, Therefore, ceased to be an employee of the CWPC on his ad hoc appointment in the project. The project was transferred to the NHPC in 1978. By the Deed of Conveyance, deputationists indicated in the project were to be continued in the NHPC on their existing terms and conditions, and direct recruits and work charge employees in the project were transferred to NHPC from the date of transfer, on the terms and conditions to be determined by it without liability to the Central Government. Therefore all employees of the project other than deputationists were deemed employees of NHPC with effect from 20.1.1978. The Petitioner was not a deputationist and Therefore he became an employee of the Corporation subject to its disciplinary control.
18. Counsel contended that there is no question of securing option from employees like the Petitioner, other than deputationists. He submitted that the decision in Jawahar''s case (supra) and the Fertilisers Corporation''s case (supra) were not relevant to the issue. It was submitted that the latest judgment of the Supreme Court in
19. Counsel contended that the disciplinary action of removal taken against the petitioner was based on materials gathered during inquiry after proper and fair opportunity was granted to him. 8 witnesses were examined in the inquiry and the Petitioner examined 3 witnesses. The Inquiry Officer in his report considered all the depositions and materials including the admission of the Petitioner in his statement dated 29.6.1976. Therefore, the allegation that the findings of the Petitioner were not based on any evidence are without any basis. Counsel relied upon the judgment of the Supreme Court reported as
20. It was also contended that Rules 14(16)(17) and (18) had been complied with as the Petitioner had examined himself and no prejudice had been caused to him. Counsel contended that even if there were violation of some Rule, that circumstance alone would not vitiate the findings unless prejudice was established. It was contended that the Petitioner had not shown as to how he was prejudiced in the course of the inquiry.
21. As regards examination of two witnesses after the conclusion of deposition of defense witnesses were concerned counsel submitted that they were examined as per Rule 15. The only objection of the Petitioner at that stage was that he should be given three days notice, as per Rules. The Inquiry Officer not only acceded to the request but in fact granted seven days time.
22. It was lastly contended that there is no merit in the plea that the statements made during the course of preliminary inquiry should not have been taken into consideration. Counsel contended that the statement was a part of the charge-sheet; at any rate the statement was made by the Petitioner himself. A copy of the statement was furnished to him. He should have refuted its contents or explained them, as the case may be. The Petitioner having in fact replied and referred to the statement, its reliance by the Inquiry Officer to establish some of the charges, could not be characterized as illegal or irregular. Reliance was placed upon the decision reported as
23. The above discussion shows that two points have to be decided in this case. One is whether the Petitioner continued with his lien in the CWPC and was Therefore not an employee of NHPC, resulting in the impugned order having been issued without lawful authority. Two, whether the impugned order was not passed on any evidence or was otherwise vitiated in law. Point No. 1
24. The factual narrative shows that the Petitioner was appointed by the CWPC in 1963 and declared to be its quasi permanent employee with effect from 14.10.1966. He continued to work under the authority of CWPC and was posted to the Technical Training Centre ,Nagarjuna Sagar Dam where he worked till 1974. The Centre was closed down and existing employees, working as Instructors were declared surplus. They were asked to report for duties in the project. The Petitioner was one such employee declared surplus who reported for duties to the project and was treated as a temporary Supervisor. The project continued and the Petitioner''s services, initially on ad hoc basis for six months was also continued. The project and all its assets were transferred to the NHPC on 20.1.1978. The question Therefore is whether the Petitioner continued in his status as a CWPC employee holding lien to the post in the Central Government even after January 1978 or whether he was an employee absorbed by the NHPC.
25. The fact that the establishment at Nagarjuna Sagar was closed down and employees working there, were declared surplus has not been disputed. This event, in my opinion is conclusive on the issue as to the Petitioner''s lien continued with the Central Government or whether his services were taken over by another establishment.
26. It has been held that a public servant enters upon his appointment to on the understanding about his entitlement to hold it as long as the post is in existence. His right or lien Therefore, at best can continue in the post as long as it exists; he however cannot prevent the abolition of the post. This position was spelt out in one of the earliest decisions of the Supreme Court in
27. The Supreme Court has also ruled that abolition of a post on account of policy decision of the State or the executive agency which may include closure of a unit or department does not amount to dismissal or removal (see
28. The Petitioner had relied upon the decision in Dr. K.S.Jawalkar and Fertilizers Corporation of India. In those cases, the employment had not come to an end nor was there any overt action on the part of the employer shutting down the unit or department, or declaring it surplus. In this case however the CWPC shut down the unit. Although the Order dated 28.2.1974 terms the deployment of the Petitioner as a transfer, yet the subsequent Order dated 2.5.1974 dispels any doubts on the issue. The Order dated 2.5.1974 indeed clarifies that deployment of the Petitioner and other employees from the Nagarjuna Sagar unit which had been closed down was as surplus staff.
29. The Respondents have also placed an Order dated on 18.7.1974 issued by the Government of India which clearly indicates that CWPC had not retained the lien of the staff declared surplus in the Technical Training Centre at Nagarjuna Sagar. The letter also indicates that the Petitioner was absorbed in the project Baira Siul Project with effect from 1.4.1974 on work charged basis.
30. In view of the above discussion, I am of the opinion that the law declared in Dr. K.S.Jawalkar''s case (supra) as well as the Fertilizer Corporation of India''s case (supra) are inapplicable. The facts of the case disclose that the Petitioner''s lien in the Central Government continued only till the point of time he reported for duties in the Baira Siul Project. Once he joined there, the lien to a post with the Central Government stood extinguished. As far as the Conveyance Deed dated 20.1.1978 granting certain entitlements is concerned, a careful reading of the said document indicates that Central Government appointees, sent on deputation to the project were to be transferred with effect from the date of the transfer of the project on terms and conditions to be determined by the Corporation.
31. In view of the above conclusion I find no infirmity in the action of the NHPC in initiating disciplinary proceedings against the Petitioner. Point No. 2
32. The Petitioner''s contention on this aspect center around two basic submissions. Firstly, that the findings of the Inquiry Officer were not based on any evidence. Secondly, it was contended that the departmental proceedings were conducted contrary to the Rules as well as in an unfair and irregular manner.
33. The charge sheet, issued in 1976, listed 6 allegations of misconduct:
(1) Issuance of 12 mm, round 550 pieces to Ganga Dayal, of NPCCC to exchange surplus rounds, in order to make up shortage of 10 mm rounds.
(2) Entering into unauthorized transaction for replacement of steel, and consequent failure to maintain absolute integrity and devotion to duty;
(3) Issuance of materials scrumptiously on Sunday without permission of the Assistant Engineer, on 20.6.1976 and in the absence of Work Assistants who measure such work.
(4) Issuance of Challan on 20.6.1976 in respect of 20 mm round bars 3.84 MT whereas the material loaded was actually 12 mm rounds. Such fictitious entry disclosed failure to maintain absolute integrity and devotion to duty;
(5) Tearing off the office copy of challan from the book in respect of materials issued o n 20.6.1976, to hide unauthorized transactions;
(6) Attempt to pressurize Work Assistants to return gate pass, to suppress the unauthorized transactions.
34. In his findings, the Enquiry Officer held the Petitioner guilty of all, charges except the last one (of having pressurized the Work Assistants to return gate passes).
35. The enquiry report does not deal with the analysis of evidence, and the charges in detail. The terminology used in the findings do lend some credence to the charge of its ambiguity. However, these infirmities have to be seen in the context of the Petitioner''s written statement, finished voluntarily on 29.6.1976. The statement is as follows:
STATEMENT OF SHRI K.C.KOHLI, SO (Mec ON 29th JUNE, 1976 I have joined at Pathankot as S.O. BSHP under A.E. Mech at Pathankot since July, 1976 and am still working there in the same capacity. Since my joining this sub Division I am S-O in charge of the steel. The entire steel lying in the Pathankot Store of sub Division under my capacity and I am responsible for its receipt, issue and safe custody. The steel is issued to various Divisions and contractor of B.S.H. Project normally against indent. But in some emergent cases the steel is issued without indents on receiving instructions on the wireless and the indents thereof are obtained subsequently. The steel is to be issued to any party is generally measure by W/Assistants under me and after measurement of the steel and 4 copies of a challan are prepared for each truck load. 3 copies of challans are handed over to receiving party and the fourth one is kept as a office copy. The receiving party hands over one copy of the challan marked as gate pass is handed over to the Chowkidar at the gate when truck leaves store. The challans are normally prepared by me. Some times these are prepared by W/Assistants. I have not issued any instructions to the W/Assistants, that they should measure the steel bars 4 to 6 C/m in excess of the actual measurements. On 20th and 21st of June (20th being Sunday) I was present in the store during the normal working hours as usual. I issued some steel M/s NPCC on the 20th of June as it is a usual practice to issue steel Sunday and Holidays. On Sunday I issued two challans in favor of M/s NPCC their numbers were steel/22/28 and steel/22/29. The material against challan No. Steel/22/28 was comprised 20 mm grip bars and was issued by XEN-CCII, Surangani in favor of NPCC. And the IInd challan steel/22/29 was for round 20 mm plain bars. There was no indent for the material against challan steel/22/29 and the challan was in favor of XEN-CC-I in favor of NPCC. The material against challan No. steel/22/29 was issued on oral request of Shri Ganga Dayal, Sup. of NPCC who has been authorized by the NPCC to receive the material against challan No. steel/22/28. The same material was loaded in NPCC truck which was mentioned in the challan against challan No. steel/22/29 plain and bar of 12 mm were loaded under my instructions. This I did to get 12 mm bar exchanged for similar quantity of 10 mm plain which are intimated as short by my W/Assistants. Since I was afraid of shortages, I wanted to make good these by exchanging excess steel. In this connection I approached Shri Ganga Dayal, who promised to help me in the matter, the office copy of the challan steel/22/29 was left in the challan book by me on 20.06.1976 but was found missing by me when I came to the Store on 21.06.1976. The challan book was kept in my office on 21.06.1976 I issued some rails to M/s P.E. Co. and since the office copy of challan steel/22/29 was not there I put the same No. on the challan for rails. Statement taken in my presence.
(Sharat Mahajan)
Sd/-
AEE Elect. VIII
29.06.1976 (K.C.Kohli)
29.06.1971
36. The above statement shows that:
(a) No indent existed in relation to issuance of 20 mm grip bars, on 20.6.1976, when the material was moved from stores of NHPC;
(b) The material was allegedly issued at the oral request of Ganga Dayal, of NPCC. There is no indication that Shri Ganga Dayal supported this defense during the enquiry;
(c) 12 mm round bars were loaded and sent out to get them exchanged with 10 mm plain bars.
(d) The Petitioner did not deny opening the store and issuing materials in the absence of the staff. His defense is that this was an established practise, and that Work Assistants were not present despite instructions.
(e) Copies of challans issued were missing.
37. The objectives of holding a domestic enquiry into charges of misconduct against an employee are two fold. One, to enquire into the truth or otherwise of the allegations; two to give a fair opportunity to the employee, to refute the allegations. The employer has to produce materials in support of the charges; the employee can refute the allegations, and produce materials in support of his case. The standard of proof required in such cases, is not the same as in criminal proceedings; even provisions of the Evidence Act are inapplicable. The findings rendered must have co-relation to the materials adduced; the findings are recommendatory and not binding. The scope of jurisdiction under Article 226 while examining legality of orders of an employer, on the basis of enquiry reports is limited to interference only where the Court finds mala fides, illegality or procedural irregularity in the enquiry (which resulted in prejudice). (see
38. If the above perspectives are to be kept in mind, the question which has to be considered is whether there was no material in support of the findings, and whether the enquiry proceedings were conducted unfairly.
39. The enquiry officer did not deal with and analyze the evidence presented, as is normally done. To that extent, it can be concluded that there was some infraction of Rule 14 which requires that the findings have to be indicated, and supported by reasons. The issue is whether that can lead to a finding that the impugned order is illegal. The materials on record, particularly the statement of the Petitioner, shows that the main charge of having removed the materials was not denied. The Petitioner also admitted that there was no indent, and that the bars were sent at the oral request of someone else. That person''s evidence was not produced, by the Petitioner. He relied on some prevailing practice in opening the store on Sunday. That version too, went uncorroborated. The Petitioner also admitted that he wanted to ''exchange'' some materials.
40. Having seen the statement, and the other materials on record, I am of the opinion that the allegation that the findings were baseless, or that the impugned removal is not based on any evidence, cannot be accepted. There was material to support the conclusions arrived at during the enquiry. The adequacy or sufficiency of the materials cannot be ordinarily examined by a Writ Court. On the facts of this case, the complaint that the Enquiry Officer''s findings were defective, or not based upon evidence, cannot be upheld.
41. Now to the second limb of contentions regarding legality of the enquiry proceedings. The Petitioner had contented that the Enquiry Officer held a defective proceedings inasmuch as opportunity to explain his statement was not afforded; prosecution witnesses were examined after closure of defense evidence; and that the Presenting Officer could not examine the Petitioner. Various provisions of the CCS (CCA) Rules were cited on behalf ff the Petitioner. It was contended that the proceedings were held contrary to such provisions in regard to those matters.
42. In S.K.Sharma''s case (supra) the Supreme Court had, upon an elaborate examination of the existing case law, indicated the correct approach to be followed by Courts examining complaints as to violation of rules or principles of natural justice in the conduct of departmental proceedings. The Court had held that even if the employer violates some principles of natural justice, or a statutory rule, the automatic consequence ought not to be in validation of the entire proceedings. It was held that the Court, in judicial review, has to determine the issue from the stand point of prejudice. It would be useful to extract the following portions from the judgment of the Supreme Court: ''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 there from, 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 defense in his evidence, and in a given case, the enquiry officer does not given 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) hereinbelow 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. 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 if, then the order of punishment cannot be set aside on the ground of 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 air 1994 SCW 1050. the ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.''
43. In this case the violation of principles of natural justice or infraction of complaint of rules relate to defective framing of the report of by the Enquiry Officer, manner of examination of witnesses during the conduct of the proceedings and not recording the statement of the Petitioner separately, in relation to his written Explanation.
44. The validity of the findings have already been commented upon. The record also shows that the Petitioner had appealed against the decision of the Enquiry Officer. Hence, I am of the view that the Petitioner has not been able to establish any prejudice on the score. He knew the findings of the Enquiry Officer in relation to every charge. The mere omission to analyze the evidence with precision or elaboration, in the facts of this case, did not prejudice the Petitioner.
45. As far as the complaint with regard to recording of evidence of two prosecution witnesses after closure of defense evidence is concerned, the Respondents have relied upon Rule 15. It is an undisputed fact that the Petitioner did not object to the procedure; he merely sought time to prepare for cross examination. Instead of the three days sought for, the Enquiry Officer gave seven days. This in my opinion is not indicative of any prejudice which would vitiate the entire proceedings.
46. Regarding the allegation that the Petitioner was not examined separately on the written Explanation furnished by him, or that the Presenting Officer followed an alien procedure in examining him, what has to be noticed is that the written Explanation was given voluntarily. The Petitioner has not alleged that he was coerced into giving that Explanation. He did not also retract from it. He was furnished with a copy of the statement when the charge sheet was served upon him. It is also undisputed that the Petitioner was examined during the course of the proceedings. In the light of all these circumstances, when he had sufficient opportunity to explain or interpret his written statement, the omission of a formality, i.e. recording his statement separately, does not indicate prejudice of such a magnitude so as to nullify the enquiry proceedings. Similarly, the charge of irregularity in the Presenting Officer examining the Petitioner, does not in my opinion lead to any conclusion of legality or prejudice. The Petitioner has nowhere stated that he objected to such procedure at the relevant time. Indeed it is not clear as to what questions put by the Presenting Officer, which the Petitioner to answer, led to prejudice or resulted in any infirmity.
47. On an overall assessment of the materials on record, what emerges is that the Enquiry Officer conducted the proceedings and granted adequate opportunity to the Petitioner. Evidence was led on behalf of the NHPCC as well as Petitioner. The latter had furnished a written statement in which he made certain admissions but sought to furnish Explanations for his conduct. All these were gone into by the Enquiry Officer and the NHPC who concluded that the Petitioner''s guilt and culpability stood established. The conclusions in the preceding paragraphs have repelled the charge by the Petitioner that the impugned order was not based on any evidence or that the enquiry proceedings were illegal or irregular. In view of these circumstances, the Petitioner is disentitled to relief.
48. For the foregoing reasons the petition has to fail; it is accordingly dismissed. Rule discharged. No costs.
