2006 Supreme(AP) 128

Andhra Pradesh High Court
Judges : A.GOPAL REDDY, GODA RAGHURAM, R.SUBHASH REDDY, T.CH.SURYA RAO, T.MEENA KUMARI
K.Swarna Kumari - Appellant
Versus
Government Of A.P. - Respondent
Decided On : 02-06-06

Headnote:A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 - Rules 20(3) - Extension of Rules to Departmental enquiries against Judicial officers and judicial employees, without prior consultation with High Court is detrimental to orderly control of High Court.

       Held : On a consideration of all the relevant factors including the pleadings in the disciplinary proceedings and elsewhere, it is for the Court to be satisfied whether there has been not merely a breach or transgression of any rule but also a substantial prejudice suffered by the petitioner or that the rule violated is of such fundamental character as to itself constitute a transgression of a degree and magnitude which per se justifies invalidation of the impugned order (de hors a de facto prejudice required to be established ). It is for the appropriate Bench to weigh and balance the competing claims and interests, on a holistic appreciation of the relevant facts, considered in the context of applicable legal principles and established authority.

       The reference by declaring that the doctrine of prejudice is generically and in principle applicable even in a context where a departmental inquiry has been conducted wholly under the 1963 rules though the inquiry was initiated after the coming into force of the 1991 Rules. As to whether relief ought to be granted or declined on a complaint of breach of any one or more of the provisions of the 1991 rules, the issue must be considered in the factual matrix of each case and on application of the relevant principles gathered from the several precedents including S. K. Sharma (supra ).

       the procedural provisions contained in the andhra Pradesh Civil Services (Classification, control and Appeal) Rules, 1991 framed by the Governor in exercise of the power conferred under the proviso to Article 309 of the Constitution are nothing but elaboration of the principles of natural justice.

       IT is by now well-settled that violation of natural justice is by itself no longer sufficient to invalidate the State action. A clear prejudice that has been suffered by the violation needs to be pleaded and demonstrated.

       violation of each and every provision of the statutory rules may not furnish a ground for the Court to interfere. The nature of the provision is required to be noticed in the first instance. Some of the provisions in the statutory rules relevant in the context may be substantive in nature and some may be procedural. Among the procedural provisions, again it may be either mandatory or directory. Apropos the directory provisions, substantial compliance of the provisions would be enough. Unless it is established that violation of directory provision has resulted in loss or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as matter of course. For, the mandatory provision can, still in the interest of party, be waived by a party unlike a mandatory provision conceived in the interest of public. In other words, wherever a complaint of violation of mandatory provision is made, the Court should enquire as to in whose interest the provision is conceived. If it is not in the interest of public, the question of waiver and acquiescence may arise, subject of course to the pleadings of the parties.

       the various rules framed under the proviso to Article 309 of the Constitution are neither wholly substantive in nature nor wholly procedural in nature. Among the procedural provisions, some of them may be mandatory and some may be directory. Among the mandatory provisions, some of them may be personal involving no public interest therein. Unless the rule is in the nature of a substantive provision, the infraction thereof cannot have the effect of vitiating the enquiry. Even among the procedural provisions, there may be some provisions of fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available. However the party interested may waive the provision when, it is not couched in public interest. But, in respect of the procedural provisions, other than that of a fundamental nature, the theory of substantial compliance would be available and in such cases complaint/objection on that score has to be judged on the touchstone of prejudice. The test is if all things taken together whether the delinquent officer/employee had or did not have a fair hearing.

       Section 20 of CCA Rules, 1991 deals with the procedure for imposing major penalties. Under sub-rule (1) thereof, it mandates that no order imposing any of the penalties specified in clauses (vi) to (x) of rule 9 shall be made except after an enquiry held, in accordance with the procedure envisaged inter alia therein. However, it further reads that the enquiry may be held as far as may be in the manner provided in that rule. Under sub-rule (2), the disciplinary authority may itself enquire into any imputation of misconduct or misbehaviour qua a Government Servant or it may appoint an authority to enquire into the truth thereof. Under sub-rule (3) if the disciplinary authority proposes to hold an enquiry, it can draw up or cause to be drawn up, the substance of imputations of misconduct or misbehaviour into definite and distinct articles of charge. Under sub-rule (4) thereof, the disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge annexing therewith other relevant documents enumerated inter alia in the rule and then shall require the Government Servant to submit a written statement of his defence. Under sub-rule (5) the disciplinary authority after receiving the written statement of defence from the delinquent may itself enquire into such of the articles of charge as are not admitted or appoint an enquiring authority for that purpose. Under sub-rule (6) where the disciplinary authority itself is not the enquiring authority and appoints an enquiring authority, forward to it a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour, a copy of the written statement of defence, a copy of the statements of witnesses, if any, etc.

       Yet another important provision is sub-rule (18 ). It mandates that the enquiring authority after the closure of evidence generally shall question the Government servant on the circumstances appearing against him in the evidence for the purpose of enabling the Government Servant to explain any circumstances appearing in the evidence against him.

       Although at the outset and as can be seen from the heading of the Chapter-V, rule 20 is a procedural one, it appears that not all the provisions contained inter alia therein are procedural. In my considered view, sub-rule (18) is in the nature of substantive provision which confers a right upon the delinquent Government Servant to explain the circumstances appearing in the evidence recorded against him. That provision is akin to Section 313 of the Code of Criminal Procedure wherein it is mandatory to examine the accused at the closure of the evidence on the side of the prosecution.

       However, it is for the writ Court to examine the provision with reference to the matrix so as to arrive at the necessary conclusion as to which among the various sub-rules mentioned inter alia in Rule 20 are directory in nature and which are mandatory in nature; more particularly, which of them are procedural and any of them partakes the character of a substantive provision.