Principles of Natural Justice in Departmental Inquires- Few Legal aspects

                                                                                                               By M.K.Gupta *

 I have attempted to summarize few legal aspects in this short write up about Departmental #Inquiries (which are based on #Constitutional provisions/ #Principles of natural justice) with the help of illustrative judgments of the Hon’ble #Supreme Court of India. This may be helpful to the Employer/Employee while dealing with Disciplinary matters. Let me know your feedback in comments.

PART XIV of the #Constitution of India deals with Services under the Union and the States. In the Constitution, certain safeguard in Service are provided to the persons serving under the Union of India or State. The same safeguards get extended to various Public Sector Undertakings also by virtue of Article 12.

Article 309 deals with the Recruitment and conditions of service of persons serving the Union or a State,

AND

Article 311 deals with the Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State, as per which-

(1)         No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)         No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed

Provided further that this clause shall not apply-

 (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

 To implement these provisions, Central /State Governments/ Public Sector Undertakings of Central / State government have framed rules to deal with the departmental proceedings against their employees.

In case of Departmental proceeding, Courts are having very limited role/jurisdiction. From time to time Honorable Supreme Court have laid down various principles where Court can intervene. 

Violation of #principles of natural justice, case of “No evidence’ or ‘Perverse finding’ are few instances where Apex Courts have held that the Decision of the disciplinary Authority is open for judicial review.

Principles of natural justice, Existence of Evidence, Compliance of rules,  Bias etc – Few case laws.

(i)    Union of India v H. C. Goel (AIR 1964 SC 364) -Supreme Court

Whether the High Court in dealing with a writ petition field by a Government Officer who has been dismissed from Government service is entitled to hold that the conclusion reached by the Government in regard to his misconduct is not supported by any evidence at all.

In dealing with writ petitions filed by public servants who have been dismissed, or otherwise dealt with so as to attract Art. 311(2), the High Court under Art. 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all.

“………., but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charges in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.

“………, mere suspicion should not be allowed to take the place of proof even in domestic enquiries.”

(ii)              Kuldeep Singh v Commissioner of Police and Others – [(1999)2 Supreme Court cases  10]-

The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.

The findings recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties.

but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

(iii) Narinder Mohan Arya v United India Insurance Company Limited and Others (2206) 4 Supreme Court cases 713.

In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following:

(1)   The enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam & Anr. V. Mahendra Kumar Das & Ors.[(1970) 1 SCC 709]

(2)   In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand V. Union of India & Ors., [1958 SCR 1080] and State of Uttar Pradesh v. Om Prakash Gupta, [(1969)3 SCC 775].

(3)   Exercise of discretionary power involve two elements: - (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi V. State of Bank of India & Ors. [ AIR 1984 SC273].

(4)   It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh V. State of Rajasthan [AIR 1986 SC 995]

(5)   The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India & Ors. Vs. Kalyan Kumar Mitra & Ors. [ (1987) 2 Cal LJ 344].

(6)   Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. V. Prakash Chand Jain, [AIR 1969 SC 983] Kuldeep Singh v. Commissioner of Police and Others, [(1999) 2 SCC 10])

(iv)      Union of India V. Krishna (Andhra Pradesh High Court) – 2005(3)SCT 139 – decided on 2-3-2005

“     ------.However, the High Court may undoubtedly interfere where the departmental authorities held the proceedings against the delinquent in a manner inconsistent with the principles of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations.”

The appreciation of evidence as held by the Supreme Court has to be in accordance with law namely the entire legal evidence has to be considered. But, however, if the evidence only supporting the case of the department is taken into consideration and the other evidence which is equally supporting the case of the employee is omitted to be considered, it would be nothing but non-application of mind and biased attitude of the Enquiry Officer.

And

When it is a case of no evidence or perverse finding, the question of remitting the matter to the authorities would not arise. The learned Standing Counsel for the Central Government, however, submits that when the inquiry was found to be defective, the matter ought to have been remitted back to the authorities. But, all the cases need not be remitted back and each case can be decided on its own merits. In the instant case, it is a case of no evidence and also perversity of finding. In such a situation, it would not be appropriate to remit either to fill up the lacuna by the department or to set right the perversity in finding.

(v) Ajantha Industries and Others v Central Board of Direct Taxes and Others [SUPREME COURT OF INDIA- 3 judges bench] 1976 AIR(SC) 437 -05/12/1975

Held:

The requirement of recording reasons under section 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee.

When law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission to communicate the reasons is not expiated.

(vi) Harmander Singh v General Manager, Northern Railway (PUNJAB AND HARYANA HIGH COURT) (06/02/1973) 1973(1) SLR 846

Head Note C-

Order of removal from Service – Recording of reasons in the removal order by Disciplinary Authority in not a mere formality. Aggrieved party can challenge the order if reasons in support of order are apprised to him- It is incumbent upon Disciplinary Authority to refute the objections raised by the delinquent official

The recording of reasons and disclosure thereof is not a mere formality. The party' affected by the order has a right to approach the Court and an effective challenge to the order may be raised if the party aggrieved is apprised of the reasons in support of the order.

It was incumbent on the respondent to have considered the representation made by the petitioner against the show-cause notice and to the objection of the petitioner before the inquiry officer's report was accepted and the penalty was imposed on him.

(vii) Mathura Prasad  v UOI & others decided on 1st Nov 2006 2007 (1) ALL MR 491, Hon’ble Supreme Court have laid down that – Rules are to strictly followed. 

“the disciplinary authority was a statutory authority. He was, therefore, bound to act within the four corners of the statute. Procedures relating to conduct of a disciplinary proceeding have been laid down by the Rules. He was bound to follow the same scrupulously.  Further in Para 14, Apex Court has ruled that “When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under sub- Rules are required to be strictly followed.     

(viii)    Amar Nath Chowdhury v Braithwaite and Company Limited and Others [SUPREME COURT OF INDIA] 2002 (2) SLJ 433- on Bias

One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as 'Debet esse Judex in Propria Causa', which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc.

Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter, otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility.

(ix) Mineral Development Limited v State of Bihar and Another [SUPREME  COURT OF INDIA] 5/12/1959 AIR 1960 SC 468- On bias.

 The principles governing the" doctrine of bias" vis-a-vis judicial tribunals are well-settled and they are:

(i)                no man shall be a judge in his own cause;

(ii)               Justice should not only be done but manifestly and undoubtedly seem to be done.

The two maxims yield the result that if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal" and that , any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it is sufficiently substantial to create a reasonable suspicion of bias.

The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i.e., authorities who are empowered to discharge quasijudicial functions.

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*  M.K.Gupta, is Civil Engineering Graduate from IIT Roorkee and LLB from Mumbai University. He is having extensive experience of working in Government of India at various positions of leadership & Management. His experience includes Rail track technology, Rail Coach manufacturing, Bridges, tunnels, Green Buildings, Infrastructure Projects implementation, Disaster Management, Safety Audit, Contract management & Dispute resolution, HRD, Training, Service matter & Departmental proceedings etc. He is currently working as Member in “Public Enterprises Selection Board”/ DoPT/ Government of India. Prior to this, he was Member (Engineering) Railway Board, Indian Railways (and Ex-Officio Secretary to the Government of India).

Disclaimer- View expressed are in personal capacity and not of Government of India. Wherever Case law are cited, one may refer to original judgment.