S. Nagamuthu, J.@mdashThe appellant was working as a Salesman in a Fair Price Shop run by the second respondent. On the allegation that the
appellant has caused loss to the society to the tune of Rs. 12,870/-, he was placed under suspension w.e.f 30.08.1988. Thereafter, a charge
memorandum was issued to him on the same allegations. The appellant submitted his explanation denying the charges. Having not satisfied with the
same, an Enquiry was ordered and the same was held. The appellant participated in the enquiry. On completing the enquiry, the Enquiry Officer
submitted a report holding the charges proved. Accepting the said report, the management passed a final order on 03.04.1989, dismissing the
appellant from service w.e.f 30.08.1988. Challenging the same, the appellant raised an industrial dispute in I.D. No. 419 of 1989. Before the
Tribunal, no witness was examined on either side. On the side of the second respondent/management, as many as 10 documents were exhibited.
On considering the materials, the Tribunal by award dated 18.02.1992, dismissed the case of the appellant and confirmed the dismissal. Aggrieved
by the same, the appellant filed W.P. No. 3983 of 1993. A learned single Judge of this Court by order dated 05.02.2001 dismissed the writ
petition. However, the learned single Judge in the said order has issued the following direction:
it is suffice to permit the petitioner to make appropriate representation to the second respondent bank to consider his case as a fresh entrant, and
the same shall be considered by the second respondent bank on merits, irrespective of his age.
The appellant is now before this Court, challenging the above order of the learned single Judge.
2. We have heard Mr. AR.L.Sundaresan, learned Senior Counsel appearing for the appellant and Mr. N.Umapathy, learned Counsel appearing
for the respondents.
3. The learned Senior Counsel appearing for the appellant would contend that before passing the final order, dismissing the appellant from service,
a copy of the Enquiry Officer''s report was not furnished to the appellant and no second show cause notice was issued to him calling upon his
further explanation. The learned Senior Counsel would rely on Rule 149 (18) (b) of the Tamil Nadu Co-operative Societies Rules, 1988 which
was in vogue then. He would further contend that the impugned order of dismissal is not correct and therefore, he would pray for setting aside the
award of the tribunal and for remitting the matter back to the tribunal for passing fresh orders after affording sufficient opportunity to the appellant.
4. Per contra, the learned Counsel for the second respondent would contend that furnishing copy of the Enquiry Officer''s report is not provided in
the Rules and therefore, there was neither necessity nor occasion for the second respondent to furnish copy of the Enquiry Officer''s report to the
appellant. He would further submit that though it is true that no second show cause notice was issued as required under Rule 149 (18)(b), on that
ground alone, the impugned order of the dismissal cannot be set aside as such non furnishing of copy has not resulted in any prejudice to the
appellant.
5. We have considered the rival submissions.
6. Before going into the facts of the case, let us first analyse the law on this subject. Prior to the 15th amendment to the Constitution of India, Sub-
article 2 of Article 311 in the original constitution provided ""No such person as aforesaid shall be dismissed or removed or reduced in rank until he
has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
7. The above said Article came to be considered as early as in the year 1958 in Khem Chand Vs. The Union of India (UOI )and Others, wherein,
a Constitution Bench of the Hon''ble Supreme Court, after tracing the history of the growth of the service jurisprudence, has held as follows:
The reasonable opportunity envisaged by the provision under consideration includes
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the
allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in
support of his defence; and finally
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the
competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government
servant tentatively proposed to inflict one of the three punishments and communicates the same to the government servant.
8. The 15th amendment to the Constitution of India came into effect from 06.10.1963 by which Sub-article 2 of Article 311 was amended to the
following effect:
311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of
the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry,
to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on
the basis of the evidence adduced during such inquiry.
9. After the above amendment, the Hon''ble Supreme Court consistently held ""failure to furnish a copy of the report of the Inquiry Officer would
result in violation of the guarantee of reasonable opportunity."" vide State of Maharashtra Vs. Bhaishankar Avalram Joshi and Another, .
10. Another Constitution Bench of the Hon''ble Supreme Court in Union of India (UOI) Vs. H.C. Goel, has held as follows:
It would thus be seen that the object of the second notice is to enable the public servant to satisfy the government on both the counts, one that he is
innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be
inflicted upon him is unduly severe. This position under Article 311 of the Constitution is substantially similar to the position which governed the
public servants u/s 240 of the Government of India Act, 1935.
11. The 42nd amendment to the Constitution, which came into force in the year 1976, altered sub Article 2 of Article 311 as follows:
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the
charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty
proposed:
12. The effect of the same came to be considered by the Hon''ble Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, wherein,
in paragraph No. 15 after analysing the above provision and analysing the principles of natural justice, the Court has held as follows:
15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the
report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished
by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the
charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the
recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have
the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law
application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out
of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by
the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if
any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled
to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
13. A thorough reading of the above judgment would make it clear that furnishing of a copy of the report of the Enquiry Officer and affording yet
another opportunity to make his submissions is a part of the principles of natural justice. Therefore, even in the absence of any rule or regulation
providing for furnishing of a copy of the Enquiry Officer''s report and second opportunity to defend, in compliance with the principles of natural
justice such course should be adopted.
14. But, in the above judgment, the Hon''ble Supreme Court did not notice a contrary view taken by an earlier Bench of the Hon''ble Supreme
Court in Kailash Chander Asthana Vs. State of U.P. and Others, . Therefore, to resolve the said conflict, the issue was referred to a Constitution
Bench in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , in which, the Court ultimately upheld the ratio laid down in Mohd.
Ramzan Khan''s case (cited supra).
15. Following the above view taken by the Constitution Bench the Hon''ble Supreme Court again held in State Bank of Patiala and others Vs.
S.K. Sharma, has held as follows:
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. Karunakar18. 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.
16. Similar view has been taken subsequently by a Full Bench of the Hon''ble Supreme Court in Punjab National Bank and Others Vs. Sh. Kunj
Behari Misra, .
17. A close reading of all the above judgments would make it abundantly clear that irrespective of whether there is any rule or regulation providing
for furnishing of a copy of the report of the Enquiry Officer and a further opportunity of personal hearing to the delinquent, in compliance with
principles of natural justice, it is mandatory on the part of the employer to furnish Enquiry Officer''s report and to afford yet another opportunity to
him to make his submissions except in certain circumstances as indicated in State Bank of Patiala''s case.
18. With the above legal background, let us now go into the facts of the present case. It is not in controversy that as per Rule 149(18)(b), before
passing a final order on the basis of an Enquiry Officer''s report, a second show cause notice should be issued to the delinquent calling upon him
for his further explanation. At this juncture, it would be useful to extract the said provision, which runs thus:
(b) No penalty shall be imposed on any employee unless he has been given a reasonable opportunity of making any representation that he may
desire to make and such representations, if any, shall be taken into consideration before final orders are passed.
Provided that where it is proposed to impose penalties specified in items (v) to (x) in Sub-rule (17), the employee concerned shall be afforded an
opportunity of personal hearing to defend himself.
19. A plain reading of the above provision would go to show that it is absolutely mandatory on the part of the second respondent to afford a
second opportunity for the appellant to make his submissions and afford personal hearing to defend himself. Such explanation and personal hearing
could be meaningful if only the appellant is made to know the conclusions of the Enquiry Officer''s report. The said course would be possible if
only copy of the Enquiry Officer''s report is also furnished to the appellant while serving the second show cause notice. Without furnishing a copy
of the Enquiry Officer''s report, the appellant cannot be expected to offer his explanation and to defend himself effectively.
20. Admittedly, in the instant case, the second respondent has neither furnished a copy of the Enquiry Officer''s report nor afforded an opportunity
of personal hearing to the appellant to defend himself as required under the Rule. Undoubtedly, the said provision is substantive in nature and it
cannot be stated to be merely procedural. In our considered opinion, in this case, non furnishing of copy of the Enquiry Officer''s report and failure
to afford personal hearing would have certainly caused serious prejudice. Thus, there is a clear violation of the mandatory provision as well as the
ratio laid down by the Hon''ble Supreme Court. Therefore, on this ground alone, we are inclined to set aside the award of the tribunal.
21. At this juncture, we would like to record the statement of the learned Senior Counsel appearing for the appellant that in respect of the enquiry,
the appellant has got no grievance. In view of the said submission, we make it clear that the appellant cannot question the correctness of the
enquiry for any purpose in future. For all these reasons, we are inclined to set aside the order of the learned single Judge and the award of the
tribunal.
22. In the result, the writ appeal is allowed; the order of the learned single Judge is set aside; consequently, the award of the tribunal is set aside
and the matter is remitted back to the tribunal for fresh disposal in accordance with law after affording sufficient opportunity to the appellant as
indicated above. No costs.
