1. Departmental enquiry — Alleged theft — Request for change of biased enquiry officer and recall of ex parte witnesses denied — Dismissal from service. (Para 2 , 3 , 4 )
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1994 Supreme(SC) 467
SUPREME COURT OF INDIA
(BEFORE K. RAMASWAMY AND N. VENKATACHALA, JJ.)
INDRANI BAI (SMT)
Versus
UNION OF INDIA AND OTHERS.
Civil Appeal No. 3962 of 1994 {From the Judgment and Order dated 26-4-1990 of the Central Administrative Tribunal, Jabalpur Bench, Jabalpur in O.A. No. 85 of 1990}, decided on April 21, 1994
Advocates appeared
Sanjay Kumar and R.N. Keshwani, Advocates, for the Appellant; Kailash Vasdev and Ms A. Subhashini, Advocates, for the Respondents.
Advocates:
A.Subhashini, KAILASH VASUDEV, R.N.KESHWANI, SANJAY KUMAR AGARWAL
A.Subhashini, KAILASH VASUDEV, R.N.KESHWANI, SANJAY KUMAR AGARWAL
The court held that failing to recall an ex parte order and denying a delinquent employee the opportunity to cross-examine witnesses or present rebuttal evidence, despite directions from higher authorities, violates the principles of natural justice and fair play under Articles 21 and 311(2) of the Constitution.
Headnote:
Constitution of India,1950 - Articles 41, 21 and 311 (2) - Attempted to commit theft - Charge memo - Representation - Appellant is widow of one, a turner in gun carriage factory - On it was alleged, that he attempted to commit theft of 50 mm grill - On a charge memo was given - On General Manager appointed enquiry officer to conduct an enquiry against him - Delinquent made a representation to higher authorities that enquiry officer was biased against him and requested to appoint any other impartial person to conduct enquiry against him - Instead of acceding to request, higher authorities had directed delinquent on to participate in enquiry - Delinquent was set ex parte as he did not appear before enquiry officer - On, he made another representation to recall witnesses already examined for cross-examination and to give him a further opportunity to examine himself and his witnesses in rebuttal - Authorities directed delinquent, by their order dated to attend enquiry when fixed and cooperate with enquiry officer - Pursuant to this direction, as found from record, that enquiry officer, instead of reopening matter and giving him an opportunity to cross-examine witnesses already examined or to examine himself as a witness or his witnesses, by a letter dated – Held, it is a clear case of violation of principles of natural justice - It is seen that right through, delinquent officer had entertained a doubt about impartiality of enquiry to be conducted by enquiry officer - When he made a representation at earliest, requesting to change enquiry officer, authorities should have acceded to request and appointed another enquiry officer, other than one whose objectivity was doubted - Unfortunately, that was not done - Even after Director General had given an opportunity to delinquent to participate in enquiry, enquiry officer obviously was expected to recall ex parte order and give delinquent an opportunity to cross-examine witnesses already examined and to adduce his evidence in rebuttal - Orders of dismissal as confirmed by appellate authority are accordingly quashed - Respondents are directed to grant to appellant pensionary benefits according to rules and also to consider her case for suitable appointment on any post to which she may be eligible for rehabilitation on compassionate ground - Respondents are further directed to pay full salary payable to deceased delinquent to appellant from date on which he was kept under suspension till date on which he would have attained superannuation - Appeal is accordingly allowed.
Legal Category Hierarchy
- administrative law
- service law
- constitutional law
Table of Contents
2. Challenge to dismissal order on grounds of violation of natural justice to claim pensionary benefits and compassionate appointment. (Para 4 )
3. Enquiry officer's failure to recall ex parte orders and witnesses despite directions denied the delinquent a fair and reasonable opportunity to defend himself. (Para 5 )
4. Denial of reasonable opportunity to cross-examine witnesses and adduce rebuttal evidence in departmental proceedings violates principles of natural justice and Article 311(2). (Para 5 , 6 )
5. Dismissal quashed; directions issued for payment of pensionary benefits, back salary, and consideration for compassionate appointment. (Para 6 , 7 )
6. Does the failure to recall ex parte witnesses after a direction to participate in an enquiry violate natural justice?
Yes. If a delinquent is given an opportunity to participate, the enquiry officer must recall the ex parte order and allow the delinquent to cross-examine witnesses and adduce evidence in rebuttal to ensure a fair and reasonable procedure. (Para 5 , 6 )
7. What is the legal implication of refusing to change an enquiry officer when objectivity is doubted?
When a delinquent raises a genuine doubt about the impartiality of an enquiry officer at the earliest opportunity, authorities should appoint an impartial officer to ensure the objectivity of the proceedings. (Para 5 )
8. Which constitutional provisions are violated when a delinquent is denied a reasonable opportunity to defend themselves in a departmental enquiry?
Such a failure results in a violation of the principles of natural justice and fair play, offending Articles 41, 21, and 311(2) of the Constitution. (Para 6 )
ORDER
1. Leave granted.
2. The appellant is the widow of one Narayan Naidu, a turner in gun carriage factory at Jabalpur. On 15-4-1980, it was alleged, that he attempted to commit theft of 50 mm grill. On 17-4-1980, a charge memo was given. On 26-6-1980, the General Manager appointed the enquiry officer to conduct an enquiry against him. The delinquent made a representation to higher authorities that the enquiry officer was biased against him and requested to appoint any other impartial person to conduct enquiry against him. Instead of acceding to the request, the higher authorities had directed the delinquent on 23-10-1980 to participate in the enquiry. On 20-11-1980, 24-11-1980 and 30-11-1980, witnesses were examined ex parte. But, unfortunately, on 14-12-1980, the delinquent was set ex parte as he did not appear before the enquiry officer. On 5-3-1981, he made another representation to recall the witnesses already examined for cross-examination and to give him a further opportunity to examine himself and his witnesses in rebuttal. The authorities directed the delinquent, by their order dated 26-9-1981, to attend the enquiry when fixed and cooperate with the enquiry officer. Pursuant to this direction, as found from the record, that the enquiry officer, instead of reopening the matter and giving him an opportunity to cross-examine the witnesses already examined or to examine himself as a witness or his witnesses, by a letter dated 26-11-1991 has stated thus:
"You were advised to submit a written brief vide letter No. MWP/ENO/14318/81, dated 27-8-1981, by 10-9-1981. No reply was received from your end. However, the Presenting Officer has presented his written brief, a copy of which is enclosed.
You are hereby given another opportunity to submit your written brief before 15-12-1981 failing which, it will be presumed that you have no written brief to be submitted. The proceedings of the Court of Enquiry held, have already been sent to you vide letter No. MPI/ENO/149318/80, dated 18-1-1981."
3. Therefore, the delinquent did not submit his written brief and an order of dismissal from service was passed and on appeal, it was confirmed.
4. In the meanwhile, the delinquent died on 1-3-1985. His widow made a representation for payment of gratuity, pension and other retiral benefits and also sought alternative employment for her subsistence. As regards payment of gratuity, it has been paid though belatedly, but the pension was not paid on the ground that the delinquent was dismissed from service. It is said that the delinquent had since been dismissed from service, she is not eligible for any compassionate appointment. Her OA No. 85 of 1990 was dismissed by Central Administrative Tribunal, Jabalpur on 26-4-1990 on the ground of multiplicity of causes of action. Thus, this appeal by special leave.
5. While issuing notice to the respondents, we had directed the respondents to place before us the entire record. A counter-affidavit has been filed and record also has been placed before us. In fairness, Shri Kailash Yasdev, learned counsel for the Union of India, having gone through the entire record, has placed necessary material before us. As seen from the narration of the facts, that after the direction was issued by the Director General in his letter dated 26-9-1981, the enquiry officer had not recalled the ex parte order dated 14-12-1980 nor did he recall the witnesses already examined on 20-9-1981, 24-9-1981 and 30-9-1981 for cross-examination nor had given him an opportunity to adduce his evidence in rebuttal. On the other hand, it is clear from the letter extracted hereinbefore that despite the direction issued by the higher authorities, the enquiry officer directed the delinquent to submit written brief, in other words, he proceeded from the stage where he last closed the proceedings. That was not the spirit of the order of the Director General. Thus, it is a clear case of the violation of principles of natural justice. It is seen that ri
