2006 Supreme(SC) 1033

2007(1) Supreme 860
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S.B. Sinha and Markandey Katju, JJ.
Shekhar Ghosh—Appellant
versus
Union of India & Anr.—Respondents
Civil Appeal No. 4635 of 2006
(Arising out of SLP (C) No. 1400 of 2006)
Decided on 1-11-2006
Counsel for the Parties :
For the Appellant : Ms. Sonia Mathur, Pankaj Prasad and Ms. Shritika Malik, Advocates.
For the Respondents : T.S. Doabia, Sr. Advocate, Ms. Varuna Bhandari Gugnani, D.S. Mahra and B. Krishna Prasad, Advocates.

IMPORTANT POINT
In the service matter when a mistake is sought to be rectified if by reason thereof an employee has to suffer civil consequences ordinarily principles of natural justice are required to be complied with.

Headnote:SERVICE LAW—Principles of natural justice—Even when a mistake is sought to be rectified if by reason thereof, an employee has to suffer civil consequences ordinarily the principles of natural justice are required to be complied with—Appellant appointed as Khalasi was promoted as Junior Clerk—While working as Junior Clerk he was promoted as Senior Clerk—Complaint was received from employees that appellant was not entitled to promotion granted which was not a regular one—Show cause was issued—Appellant was repatriated to the original place of work—Administrative Tribunal noticing that his name in seniority list had been included by mistake, Tribunal opined that there was no illegality in repatriating appellant—High Court dismissed the writ—Appeal—Plea of mistake was taken for first time before Tribunal but no plea that it was entitled to rectify the same or order impugned was capable of being rectified—No opportunity of hearing was given Appellant was entitled to hearing—Impugned order could not be sustained.

       Held : The mistake was said to have been detected on the basis of the complaint made by four employees. Serious allegations had been made against the appellant therein. If the allegations made therein were correct; then not only the appellant but also other officers of the department, whom he had allegedly paid bribe for forging the documents, were guilty of misconduct. Appellant had never been supplied with a copy of the said complaint. No disciplinary proceedings were initiated against him. No charge was framed, nor any witness was examined. No Inquiry Officer was appointed to conduct an enquiry into the allegations on the charges of misconduct framed against the appellant in that behalf. The order dated 21.11.1996 clearly demonstrates that the Senior Divisional Officer, Kota, without holding an enquiry arrived at a finding that his original post was Khalasi in Wagon Repair Shop, Kota and his lien had been cancelled. He was directed to be repatriated. Despite arriving at such a finding, a post-decisional hearing was sought to be afforded to the appellant. A post decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion.(Paras 11 to 14)

       It is not denied or disputed that even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences ordinarily the principles of natural justice are required to be complied with.(Para 18)

       Curiously Respondents in their counter-affidavits filed before the Tribunal and the High Court did not raise any plea of rectification of any mistake. It was also not stated in the show cause notice issued to the appellant. Only a plea of mistake was taken for the first time before the Tribunal, but no plea was taken that it was entitled to rectify the same or his order impugned before it was capable of being rectified. Thus, it was not a case where an opportunity of hearing was given to Appellant on the premise that a mistake had been committed by the authorities of the first respondent and the same was required to be rectified.(Para 19)

       It is also not a case where a mistake was apparent on the face of the records and, thus, compliance of the principles of natural justice would not have made any difference as was in the case of Smt. Ratna Sen nee Roy v. The State of West Bengal & Ors. [1995 (1) Cal. LT 462]. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with.(Paras 22 and 23)

       In this case, Respondents accept that Appellant was entitled to a hearing. All the necessary ingredients of principles of natural justice were thus required to be complied with. Appellant as noticed hereinbefore had not been given adequate opportunity of hearing inasmuch as: (i) the hearing was sought to be given was a post-decisional one, which is bad in law; (ii) a copy of the complaint was not supplied to Appellant at furtherance if not proposed that a mistake was sought to be rectified; (iii) No charges were framed; (iv) no witness was examined; and (v) no Inquiry Officer arrived at any finding that Appellant was guilty of the charges levelled against him. The Tribunal or the High Court did not consider these aspects of the matter. The impugned judgment, therefore, cannot be sustained.(Paras 24 and 25)