TaxTMI 
TaxTMI 
2008 (7) TMI 967
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....the Corporation in June, 1979. According to the appellant-Corporation, he was given `warning' in 1984. In 1993, he was working as Deputy General Manager. In 1997, he was reprimanded. On August 17, 1999, he was working as Branch Manager at Branch Office, Rewari. The Corporation initiated proceedings against the writ-petitioner in accordance with Regulation 41 (1) and (2) of Punjab Financial Corporation (Staff) Regulations, 1961 (hereinafter referred to as `the Regulations') on the allegations enumerated in the Statement of Charges. The statement related to commission and omission on the part of the writ-petitioner. The writ- petitioner submitted a reply on December 14, 1999. An Inquiry Officer was appointed who submitted his report on December 15, 2000 and exonerated the writ-petitioner of all the charges. According to the Corporation, however, the report of the Inquiry Officer suffered from certain deficiencies. Hence, the Managing Director of the Corporation asked the Inquiry Officer vide a communication dated June 19, 2001 and sought clarification. The matter was remanded to the Inquiry Officer with the advice to clarify the points within 15 days. The Inquiry Officer call....
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....e in this connection was placed by the learned counsel for the writ- petitioner on B. Karunakar, as on also two decisions of the High Court of Punjab & Haryana in M.S. Sandhu v. Haryana Vidyut Parsaran Nigam Ltd., (2005) 4 SCT 628 and Ramesh Kumar v. State of Haryana & Ors., (2006) 3 SCT 799. 8. On behalf of the Corporation, the learned counsel contended that there was no whisper in the writ petition that any prejudice had been caused to the case of the writ petitioner which was required to be shown as per the ratio laid down in B. Karunakar cited by the counsel for the writ-petitioner. It was urged that it is only in those cases where a Court or Tribunal comes to the conclusion that non-supply of the report of the Inquiry Officer had caused prejudice to the delinquent that it would vitiate the action. If, on the other hand, non-supply of report would have made `no difference' to the ultimate finding and punishment imposed, the order of punishment could not be interfered with. 9. The High Court held that supply of report of the Inquiry Officer was an `essential requirement' and non-supply thereof resulted in violation of principles of natural justice. It, therefore, set a....
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....ld constitute infringement of doctrine of natural justice. In B. Karunakar, a three Judge Bench of this Court was called upon to consider the effect of non-supply of Inquiry Officer's report to the delinquent. The attention of the Court was invited to certain decisions wherein a different note had been struck by this Court. Reference was made in this regard to a three Judge Bench decision of this Court in Kailash Chander Asthana v. State of U.P., (1988) 3 SCC 600, wherein it was held that non-supply of the report would not `ipso facto' vitiate the order of punishment in absence of prejudice to the delinquent. Though Mohd. Ramzan Khan was decided subsequently, Kailash Chander Asthana was not brought to the notice of the Court. The Bench, therefore, felt that the matter should be placed before a larger Bench and accordingly the Registry was directed to place the papers before Hon'ble Chief Justice of India so that an appropriate action can be taken [vide Managing Director, ECIL v. B. Karunakar, (1992) 1 SCC 709]. Accordingly, the mater was placed before the Constitution Bench. 14. The Constitution Bench observed that the basic question of law which arose in the matters w....
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....the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. 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. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an `unnatural expansion of natural justice' which in itself is antithetical to justice". (emphasis supplied) 19. Holding that it was incumbent on the delinquent employee to show prejudice, the majority held that non-supply of report of the Inquiry Officer to the delinq....
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....2. 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 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 a finding is recorded by the High Court that failure to supply Inquiry Officer's report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed. 23. 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 ....
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....e and other relevant circumstances disclosed in the particular case". 29. In the leading case of A.K. Kraipak v. Union of India, (1969) 2 SCC 262, Hegde, J. stated; "What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case". 30. Again, in R.S. Dass v. Union of India, 1986 Supp SCC 617, this Court said; "It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case". 31. At the same time, however, effect of violation of rule of audi alteram partem has to be considered....
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....t said; "The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It 'll comes from a person who has denied justice that the person who has been denied justice is not prejudiced". (emphasis supplied) 37. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. 38. In Malloch v. Aberdeen Corporation, (1971) 2 AllER 1278, Lord Reid said; "(I)t was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer". (emphasis supplied) 39. Lord Guest agreed with the above statement, went further and stated; "A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant ....
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....aws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. [See R. v. University of Cambridge, (1723) 1 Str 557] But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: " `To do a great right' after all, it is permissible sometimes `to do a little wrong'." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Disaster), SCC p. 705,para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential". (emphasis sup....
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....w-cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show- cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show-cause but, albeit after some time the said cause was available with the disciplinary authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show-cause as he did not leave his office by then. The expression "communication" in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer". (See State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313) 47. From the aforesaid decisions, it is clear that though supply of report of 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 a....