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Judgment
Tejinder Singh Dhindsa, J.—The petitioner, who was serving as Examiner in the Court of Additional Civil Judge (Senior Division), Charkhi Dadri, has filed the instant writ petition impugning the order dated 24.12.2012 passed by the District & Sessions Judge, Bhiwani, Annexure P5 vide which he has been dismissed from service. Further challenge is to the order dated 4.5.2013, Annexure P7, whereby the service appeal, preferred by him against the order of dismissal, has been rejected on the administrative side by this Court. Brief facts that would require notice are that the petitioner was served with a charge sheet dated 30.7.2010 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 read with Rule 12(2) of the Haryana Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997 on the following precise articles of charge:
1) As per provisions of Rule 18 of the Government Employees (Conduct) Rules, 1966 (hereinafter may be called as ''the rules''), he was required to submit the return of movable and immovable properties every year, which he failed to submit for the year 1994 to 1999 and 2001.
2) That he failed to submit the information regarding running of diary business by his wife Smt. Raj Bala within one month to the Government as per provisions of Rule 15(2) of the above said rules.
3) He has not mentioned in his property statement the annual income of his wife Smt. Raj Bala including her bank account with regard to her income from dairy and shop.
4) His wife Smt. Raj Bala had purchased a plot/land in the year 1988 for a sale consideration of Rs. 7,500/- vide sale deed dated 24.8.1988 after getting the amount as gift from her father Shri Sher Singh without the previous knowledge of the Prescribed Authority as per the provisions of Rule 18(2) of the said rules.
5) In the property statements for the years 1992, 1993, 2000 and 2002, he has suppressed intentionally the fact that his wife owns a house.
6) That he was indulging in private trade or business of property dealing and was having income disproportionate to his assets.
7) He has not shown a built up house measuring 288.89 sq. yards situated in Dabar Colony, Tosham bye-pass, Bhiwani purchased by his wife Smt. Raj Bala from Smt. Sandokhi Devi for a sale consideration of Rs. 1,51,500/- vide registered sale deed dated 17.3.2006 in his property statements till filing of the charge-sheet.
8) He has not given any intimation to the department with regard to purchase of built up house measuring 210 sq. yards consisting of three shops and four rooms from Smt. Sandokhi Devi for the sale consideration of Rs. 2,91,000/-vide registered sale deed dated 17.3.2006 by his wife Smt. Raj Bala.
9) In the property statement for the year 2000 and onwards he has not fully detailed the true property, one built up house measuring 288.89 sq. yards and 210 sq. yards and has wrongly mentioned one plot situated at Tosham bye-pass, Bhiwani, whereas both the sale deeds dated 17.6.2006 were registered for residential house. This fact has been concealed by him from the department. He has wrongly mentioned that house situated in Brahma Colony, Dinod Road, Bhiwani was purchased by his wife in the year 1988 for sum of Rs. 7,500/- after getting the gift from his father-in-law. Copy of sale deed shows that the plot was purchased and not the house. It was not mentioned by him as to how and when the house was constructed on the said plot. Later on his wife had sold half portion but no intimation was given to the Department.
10) He has failed to inform as to how and when he become co-owner of the house mentioned in the property statement for the year 2003 to 2006 situated in the area of Bhatta (brick-kiln) of Jai Singh as owned by him and his wife. He has suppressed the material fact regarding the property owned by him and his wife. His act and conduct amounts to misconduct which is unbecoming of a public servant.
The reply submitted by the petitioner to the charge sheet having been found unsatisfactory, regular enquiry was initiated and an Enquiry Officer was appointed. The enquiry report dated 26.9.2012 was furnished holding all the charges to be proved against the petitioner except charge No. 6 to the extent of the allegation that he had been indulging in the business of property dealing. Thereafter, a second show cause notice dated 3.10.2012 was served upon the petitioner along with the copy of the enquiry report wherein imposition of major penalty was contemplated. The petitioner submitted a reply dated 20.10.2012 to the second show cause notice. However, upon consideration of the same, respondent No. 2 i.e. the Punishing Authority passed the impugned order dated 24.12.2012, Annexure P5, imposing the extreme penalty of dismissal. The petitioner preferred a service appeal and the same has been dismissed vide order dated 4.5.2013, Annexure P7.
Mr. R.K. Malik, learned Senior Counsel appearing for the petitioner, has raised a two-fold submission. In the first instance, it has been urged that the enquiry report had been furnished to the petitioner along with the show cause notice and such action was in violation of the principles of natural justice. Learned Senior Counsel would contend that the requirement of law would be for the Punishing Authority to have forwarded the enquiry report to the delinquent so as to enable him to have submitted his objections in relation to the findings recorded by the Enquiry Officer and it was only thereafter that the Punishing Authority could have considered the enquiry report along with the objections submitted by the petitioners thereto so as to arrive at a conclusion to either accept the enquiry report or to disagree with the same. The argument raised is that it is only in terms of following such procedure that a show cause notice proposing the major penalty could have been issued to the petitioner. In support of such contention, reliance has been placed upon two judgments of the Hon''ble Apex Court in Union of India and others Vs. Mohd. Ramzan Khan, and Managing Director, E.C.I.L., Hyderabad Vs. B. Karunakar (II), . That apart, learned counsel would even advert to an order dated Nil appended as Annexure P8 along with the petition passed in service Appeal of an employee, namely, Joginder Singh in which this Court on the administrative side in similar circumstances had set aside the order of dismissal on the same very ground i.e. the copy of the enquiry report having not been supplied to the aforenoticed Joginder Singh prior to the application of mind by the Punishing Authority to the findings recorded by the Enquiry Officer and as such, the matter had been remanded back to the Disciplinary Authority to proceed afresh in the matter.
The second submission raised by learned counsel for the petitioner is that even if it was assumed that the allegations against the petitioner are correct and duly proved, yet in the light of the fact that he had rendered almost 28 years of service, the penalty of dismissal would be very harsh and disproportionate. Learned counsel urges that this Court may intervene in the matter and substitute the order of dismissal with that of compulsory retirement.
Learned Senior Counsel for the petitioner has been heard at length and the pleadings on record have been perused.
The undisputed question of fact is that the copy of the enquiry report had been supplied and served upon the petitioner only at the stage of the issuance of the show cause notice. The question as such that would require determination is as to whether in the light of the facts of the present case there has been a violation of the principles of natural justice?
The petitioner had submitted a reply dated 20.10.2012, Annexure P4, to the show cause notice dated 3.10.2012. In such reply, no objection had been taken as regards the enquiry report having not been furnished to him earlier in point of time. The Hon''ble Supreme Court in the case of Haryana Financial Corporation and Another Vs. Kailash Chandra Ahuja, had examined the earlier judgments in Mohd. Ramzan Khan (supra) and Managing Director, ECIL (supra) and had observed as follows:
From the ratio laid down in B. Karunakar, it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer''s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside.
In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of the Inquiry Officer was not supplied to the delinquent writ petitioner. While the contention of the writ petitioner is that since failure to supply inquiry officer''s report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor is a finding recorded by the High Court that failure to supply the Inquiry officer''s report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed.
The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was ''no whisper'' in the writ petition showing any prejudice to the delinquent as required by B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is ''writ large''.
In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated;
(v) ..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.
It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem (hear the other side). But it is equally well settled that the concept ''natural justice'' is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the strait jacket of a rigid formula.
From the aforesaid decisions, it is clear that though supply of report of the Inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show ''prejudice''. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.
Such view has been re-iterated by the Hon''ble Supreme Court in a recent judgment in Sarv U.P. Gramin Bank Vs. Manoj Kumar Sinha,
In terms of the conclusions drawn by the Hon''ble Supreme Court, even in an eventuality of the report of the Enquiry Officer being not furnished to the delinquent employee, it had been held that the same would not automatically result in quashing or setting aside of the order of the Punishing Authority. In the present case, the enquiry report had been furnished though at the stage of issuance of the show cause notice to the petitioner. The pleadings on record are totally silent as regards the prejudice that has been caused to the petitioner on account of the enquiry report having been supplied at the stage of issuance of the show cause notice itself. In the reply submitted by the petitioner to the show cause notice, no such plea was raised. Even though such ground was raised in the Service Appeal, but it was nowhere pleaded as to how the non-supply of the enquiry report prior to the issuance of the show cause notice has resulted in mis-carriage of justice. It was incumbent upon the petitioner to establish the prejudice that had been suffered by him. It is not that in every case where a copy of the enquiry report is not supplied prior to the Disciplinary Authority accepting the findings of the Enquiry Officer that prejudice has to be presumed. Mere non-supply of the report would not ipso facto vitiate the order of punishment in the absence of specific and categoric pleadings demonstrating any prejudice that may have been caused. Without there being even a whisper in the instant writ petition in regard thereto, it cannot be held that there has been any negation of the principles of natural justice. The reliance placed upon the order passed by this Court on the administrative side and the Service Appeal of Shri Joginder Singh at Annexure P8 is wholly mis-placed. In such order, the issue as to whether any prejudice having been caused to Joginder Singh on account of non-supply of the enquiry report had not been examined and as such not dealt with. Benefit of such order as such cannot ensure to the present petitioner.
Even as regards the quantum of punishment, I am of the considered view that there would be no scope for interference. The articles of charge were precise in nature and have been duly proved during the course of a regular enquiry. Petitioner has been held guilty of the violation of the provisions of Rule 15(2) and Rule 18 of the Government Employees (Conduct) Rules, 1966. The petitioner has been held guilty of suppressing material documents regarding property owned by him and his wife. Even the charge of possessing assets disproportionate to his known sources of income stand proved. In the light of such findings, the penalty imposed upon the petitioner cannot be construed as disproportionate to the charges or one that shocks the conscience of the Courts. In declining to interfere as regards the quantum of punishment, I would draw support from the judgment of the Hon''ble Supreme Court in The Regional Manager and Disciplinary Authority, State Bank of India, Hyderabad and Another Vs. S. Mohammed Gaffar, , wherein it was observed as under:
The High Court seems to have overlooked the settled position that in departmental proceedings, insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or Appellate Authority is either impermissible or such that it shocks the conscience of the High Court, it should not normally interfere with the same or substitute its own opinion and either impose some other punishment or penalty or direct the authority to impose a particular nature or category of punishment of its choice. It is for this reason we cannot accord our approval to the view taken by the High Court in disregard of this settled principle. Consequently, the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge shall stand restored. No costs.
For the reasons recorded above, there is no merit in the instant writ petition and the same is, accordingly, dismissed.