Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7087 OF 2002

Union of India & Ors. …. Appellants

Versus

Bishamber Das Dogra …. Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.  

1. This Appeal has been filed against the Judgment  and Order of  

the Division Bench of the Calcutta High Court dated 31st January,  

2002 in FMAT No. 1370 of 1992 by which it affirmed the judgment  

and order dated 16th July, 1991 of the learned Single Judge passed  

in  Civil  Order  No.3885  W  of  1987  setting  aside  the  order  of  

punishment of removal awarded by the Disciplinary Authority to the  

respondent employee.

2. The facts and circumstances giving rise to this appeal are that  

respondent  joined  the  service  as  Security  guard  in  Central

Industrial  Security  Force  (CISF)  in  August,  1980.   He  remained  

absent from duty without seeking permission or leave, thus, vide  

order dated 12th August, 1984, he was awarded the entry of censure  

for  the  same.    Respondent  was  again  punished  for  remaining  

absent from duty for three days vide Order dated 22nd July, 1985  

withholding one annual increment for two years.  The respondent  

again  absented  himself  from duty  from 31st August,  1985 to  8th  

September, 1985 i.e. for six days for which  vide Order dated 5th  

September, 1985, he was imposed the punishment of withholding of  

one  annual  increment  for  three  years.   The  respondent  again  

deserted the LINE for the period from 6.3.1986 to 16.3.1986 i.e. 10  

days for which he was issued a Show Cause Notice under Rule 34  

of  CISF  Rules  on  22/24.3.1986.   The  said  notice  could  not  be  

served upon him as the respondent again deserted the LINE for a  

period of 50 days, from 21.3.1986 to 10.5.1986   and joined the  

service on 11th May, 1986.  Therefore, he could be served the show-

cause  notice  dated  22/24.3.1986  on  15th May,  1986.   The  

respondent submitted his reply to the show cause notice.  However,  

as  it  was  not   found   satisfactory,  a        regular    departmental  

enquiry    was      initiated    against       him.             During      the  

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pendency of the enquiry, the respondent again deserted the LINE  

for  11  days   from 6.6.1986  to  16.6.1986.   The  Enquiry  Officer  

concluded  the  enquiry  and  submitted  the  report  which  was  

accepted  by  the  Disciplinary  Authority  who  vide  order  dated  

17.6.1986 imposed the punishment of removal from service.  While  

passing the punishment Order, the Disciplinary authority also took  

into consideration the past conduct of the respondent.  

3. Being  aggrieved,  the  respondent  preferred  the  Statutory  

Appeal which was dismissed by the Appellate Authority vide order  

dated 19.10.1986 observing that the respondent had not completed  

six years in service but had deserted the LINE five times.  Thus no  

lenient view was permissible.

4. Being  aggrieved,  the  respondent-employee  preferred  the  

revision  before  the  Statutory  Authority.   However,  during  the  

pendency of  the said revision,  he filed Writ  Petition No.  3885 of  

1987 before the Calcutta High Court.   The learned Single Judge  

vide Judgment and Order dated 16.7.1991 allowed the writ petition,  

quashing the order of punishment on the ground that the copy of  

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the enquiry report was not furnished and the respondent employee  

was not given the opportunity to file the objections to the same.  

More  so,  his  past  conduct  could  not  have  been  taken  into  

consideration while imposing the punishment.

5. Aggrieved, the present appellants filed  F.M.A.T. No. 1370 of  

1992 before the Calcutta High Court which was dismissed by the  

Division Bench by Judgment and Order dated 31st January, 2002.  

Hence, this appeal.

6. Shri SWA Qadri, learned  counsel appearing for the appellants  

has submitted that the respondent employee remained absent from  

duty  without  any  justification  or  leave  for  more  than  five  times  

within a short span of  less than six years in service.   Even during  

the pendency of the enquiry, he remained absent two times; firstly  

for 50 days and secondly for 11 days.   Thus, the enquiry could not  

be concluded expeditiously.  It is not necessary that in every case,  

non furnishing  the  copy  of  the  enquiry  report  to  the  delinquent  

employee  is  always  fatal.   It  is  necessary  for  such  employee  to  

establish that non-furnishing of the copy of the enquiry report has  

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caused prejudice to him.   More so, the delinquent employee had  

been  repeatedly  absenting  himself  without  any  justification  time  

and  again.  There  could  be  no  prohibition  for  taking  into  

consideration his past conduct while imposing the punishment, for  

the  reason,  that  it  merely  fortifies  the  reasons  to  impose  the  

punishment.  Punishment  order  was passed in 1986,  a period of  

about 23 years has lapsed.  The order of the High Court if enforced,  

would  be  a  reward  for  deserting  the  LINE time  and  again  by  a  

member of the disciplined force.  Therefore, the appeal deserves to  

be allowed.

7. On the contrary, Shri D.K. Garg, learned counsel appearing for  

the  respondent  employee  has  submitted  that  as  there  has  been  

violation  of  the  principles  of  natural  justice  while  holding  the  

enquiry, the judgments and orders passed by the High Court do not  

require  any  interference.   The  past  conduct  of  the  respondent  

employee could not be taken into consideration while imposing the  

punishment  as  it  becomes  violative  of  the  principles  of  natural  

justice.  Therefore, the appeal is liable to be dismissed.

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8. We have considered the rival submission made by the learned  

counsel  for  the  parties  and perused  the  record.   In  view  of  the  

submission  made  by  learned  counsel  for  the  parties,  only  two  

questions arise for our consideration:

(1) Whether the delinquent employee is not supposed to establish de-facto   

prejudice  in  case  the  enquiry  report  is  not  supplied  to  him  before  

awarding punishment?

(2) Whether the order of punishment would be vitiated if  the Disciplinary   

Authority  takes  into  consideration  the  past  conduct  of  the  delinquent  

employee for the purpose of punishment?

9. In  fact  both  these  issues  relate  to  the  observance  of  the  

principles of natural justice as the delinquent employee may not  

get an opportunity to make the representation against the findings  

of fact recorded by the Enquiry Officer against him and also for the  

proposed punishment by the disciplinary authority.  Principles of  

natural justice cannot be put into a strait-jacket formulate and its  

observance would depend upon the fact  situation of  each case.  

Therefore, the application of the principles of natural justice has to  

be  understood  with  reference  to  the  relevant  facts  and  

circumstances of a particular case.

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10. In  Chairman,  Board  of  Mining  Examination  and  Chief  

Inspector of  Mines & Anr.  v.  Ramjee,  AIR 1977 SC 965, this  

Court has observed that  natural justice is not an unruly horse,  

no lurking landmine, nor a judicial cure-all.  If fairness is shown  

by  the  decision-maker  to  the  man  proceeded  against  the  form,  

features  and  the  fundamentals  of  such  essential  processual  

propriety being conditioned by the facts and circumstances of each  

situation, no breach of natural justice can be complained of.  In Dr.  

Umrao  Singh  Choudhary v.  State  of  Madhya  Pradesh  & Anr.  

(1994) 4 SCC 328, this Court held  that the principles of natural  

justice  do  not  supplant  the  law,  but  supplement  the  law.   In  

Syndicate Bank & Ors. v. Venaktesh Gururao Kurati JT (2006) 2  

SC 73,  it was held :  

“To  sustain  the  allegation  of  violation  of  principles  of  natural  justice,  one  must  establish  that  prejudice  has  been caused to him for non-observance of principles of  natural justice.”

11. It  is  settled  legal  position  that  an  order  is  required  to  be  

examined  on  the  touchstone  of  doctrine  of  prejudice.    A  

Constitution Bench of this Court in  Managing Director, ECIL      v.  

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B. Karunakar (1993) 4 SCC 727, considered the issue at length and  

after  taking  into  consideration  its  earlier  judgment  in  Union  of  

India v.  Mohd.  Ramzan Khan  ,   AIR  1991 SC 471,  came  to  the  

conclusion  that  furnishing  the  copy  of  the  enquiry  report  and  

consideration of the employee’s reply to the same by the disciplinary  

authority constitute an integral  part  of the enquiry.   The second  

stage  follows  the  enquiry  so  carried  out  and  it  consists  of  the  

issuance of the notice to show cause against the proposed penalty  

and of considering the reply to the notice and deciding upon the  

penalty.  Thus, it is the right of the employee to get the opportunity  

to make a representation against the findings in the enquiry report.  

However,  the  Court  further  held  that  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.  The Court further observed as under:   

“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  

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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.  ……… …….. ……. It is only if the  Court/Tribunal  finds  that  the  furnishing  of  the  report  would have made a difference to the result in the case  that  it  should  set  aside  the  order  of  punishment.”  (Emphasis added)

12. In Haryana Financial Corporation v. Kailash Chandra Ahuja  

(2008)  9  SCC  31,  this  Court  applied  the  law  laid  down  in  B.  

Karunakar case (supra) and observed as under:

“It is also clear that non-supply of report of the inquiry  officer  is  in  the  breach  of  natural  justice.   But  it  is  equally clear that failure to supply a report of the inquiry  officer to the delinquent employee would not ipso facto  result  in  the  proceedings being declared null  and void  and the order of punishment non est and ineffective.  It is  for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted  in miscarriage of justice.  If he is unable to satisfy the  court  on  that  point,  the  order  of  punishment  cannot  automatically be set aside.”  (Emphasis added).

13. In State Bank of Patiala v.  S.K. Sharma (1996) 3 SCC 364,  

this Court emphasized on the application of doctrine of prejudice  

and held that unless it is established that non-furnishing the copy  

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of  the  enquiry  report  to  the  delinquent  employee  has  caused  

prejudice  to  him,  the  Court  shall  not  interfere  with the order of  

punishment for the reason that in such an eventuality setting aside  

the order may not be in the  interest  of  justice  rather  it  may be  

tantamount to negation thereof.  This court held as under:-

“Justice  means  justice  between  both  the  parties.  The  interests of justice equally demand that the guilty should  be  punished  and  that  technicalities  and  irregularities  which do not occasion failure of justice are not allowed to  defeat the ends of justice.  Principles of natural justice  are but the means to achieve the ends of justice.  They  cannot  be  perverted  to  achieve  the  very  opposite  end.  That would be a counter-productive exercise.”  (Emphasis  added).

14. Similar  view  had  been  reiterated  in  S.K.  Singh v.  Central  

Bank of India & Ors. (1996) 6 SCC 415, State of U.P. v. Harendra  

Arora & Anr., AIR 2001 SC 2315.   

15. In Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7  

SCC 529, this Court  considered the judgment in  M.C. Mehta v.  

Union of India & Ors. (1999) 6 SCC 237 wherein it has been held  

that an order passed in violation of natural justice need not be set  

aside in exercise of the writ jurisdiction unless it is shown that non-

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observance has caused prejudice to the person concerned for the  

reason that  quashing  the  order  may revive  another  order  which  

itself  is  illegal  or  unjustified.   This  Court  also  considered  the  

judgment in S.L. Kapoor v. Jagmohan AIR 1981 SC 136, wherein it  

has been held that in a peculiar circumstance observance of the  

principles of natural justice may merely be an empty formality as if  

no other conclusion may be possible on admitted or indisputable  

facts.   In such a fact-situation, the order does not require to be  

quashed if passed in violation of natural justice.  The Court came to  

the  conclusion that  a  person complaining non-observance  of  the  

principles of natural justice must satisfy that some  real prejudice  

has been caused to him for the reason that there is no such thing  

as a merely technical infringement of natural justice.   

16. Thus, in view of the above, we are of the considered opinion  

that in case the enquiry report had not been made available to the  

delinquent employee it would not ipso facto vitiate the disciplinary  

proceedings as it would depend upon the facts and circumstances  

of the case and the delinquent employee has to establish that real  

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prejudice has been caused to him by not furnishing the enquiry  

report to him.   

17. This Court in State of Assam v. Bimal Kumar, AIR 1963 SC  

1612 considered the issue as to whether while imposing the  

punishment it is permissible to take into consideration the  

past conduct of an employee if it is not so mentioned in the  

second show cause notice.  The Court observed that while  

issuing second show cause notice, the disciplinary authority  

naturally has to come to a tentative or provisional conclusion  

about the guilt of the charged employee as well as about the  

punishment which would meet the requirement of justice in  

his case, and it  is only after  reaching conclusions in both  

these  matters  provisionally  that  the  disciplinary  authority  

issues the second notice. The delinquent employee is entitled  

to show cause not  only against  the action proposed to be  

taken against him but also against the validity or correctness  

of  the  findings  recorded  by  the  Enquiry  Officer  and  

provisionally accepted by the disciplinary authority.  Thus, it  

enables the delinquent to cover the  whole ground and to  

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plead that no case had been made out against him for taking  

any disciplinary action and then to urge that if  he fails in  

substantiating  his  innocence,  the  action  proposed  to  be  

taken against him is either unduly severe or not called for.   

18. In State of Mysore v. Manche Gowda, AIR 1964 SC 506, this  

Court  held  that  the  disciplinary  authority  should  inform  the  

delinquent employee that it is likely to take into consideration the  

past  conduct  of  the  employee  while  imposing  the  punishment  

unless the proved charge against the delinquent is so grave that it  

may independently warrant the proposed punishment.  Though his  

previous record may not be subject matter of the charge at the first  

instance.  

19. In India Marine Service (P) Ltd. v. Their Workmen, (1963) 3  

SCR 575,  this  Court  while  considering  the similar  issue held as  

under :  

“It is true that the last sentence suggests that the past record of  Bose has also been taken into consideration.  But it does not follow from  this that that was the effective reason for dismissing him.  The Managing   Director having arrived at the conclusion that  Bose’s  services must be  terminated in the interest of discipline,  he added one sentence to give  additional weight to the decision already arrived at.  Upon this view, it   

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would  follow  that  the  Tribunal  was not  competent  to  go  behind  the  finding  of  the  Managing  Director  and  consider  for  itself  the  evidence   adduced before him.  The order of the Tribunal quashing the dismissal of  Bose and directing his re-instatement is,  therefore, set aside as being   contrary to law.” (Emphasis added)

20. Similarly in Director General, RPF v. Ch. Sai Babu, (2003) 4  

SCC 331, this Court held as under:

    “Normally,  the  punishment  imposed  by  a  disciplinary   authority should not be disturbed by the High Court or a tribunal except   in appropriate cases that too only after reaching a conclusion that the   punishment  imposed  is  grossly  or  shockingly  disproportionate,  after   examining  all  the  relevant  factors  including  the  nature  of  charges  proved against, the past conduct, penalty imposed earlier, the nature of   duties  assigned  having  due regard to  their  sensitiveness,  exactness   expected  of  and  discipline  required  to  be  maintained,  and  the  department/establishment  in which  the  delinquent person concerned  works.” (Emphasis added)

21. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005)  

2 SCC 489, this Court reiterated the similar view observing as  

under :

“In the facts and circumstances of the case and  having regard to the  past conduct of the respondent as also his conduct during the domestic   enquiry proceedings, we cannot say that the quantum of punishment  imposed upon the respondent was wholly disproportionate to his act of   misconduct or otherwise arbitrary.” (Emphasis added)

22. In Govt. of A.P. & Ors. v. Mohd. Taher Ali (2007) 8 SCC 656,  

this  Court  rejected  the  contention  that  unless  the  past  

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conduct  is  a  part  of  charge-sheet,  it  cannot  be  taken  into  

consideration while imposing the punishment observing that  

“there can be no hard and fast rule that merely because the  

earlier  misconduct  has  not  been  mentioned  in  the  charge  

sheet it cannot be taken into consideration by the punishing  

authority.   Consideration  of  the  earlier  misconduct  is  often  

necessary only to reinforce the opinion of the said authority.”   

23. In fact in this case the argument had been advanced that if  

the disciplinary authority wanted to consider the past service record  

of the employee, it should be a part of charge-sheet.  Though in K.  

Manche  Gowda  (supra),  this  Court  said  that  it  should  be  so  

indicated in the second show cause notice only for the purpose of  

imposing punishment.  Thus it is not necessary that it should be a  

part of the charge sheet.

24. In Colour-Chem Ltd. v. A.L. Alaspurkar & Ors., AIR 1998 SC  

948, this Court considered the statutory rules which itself provided  

as  what  can  be  taken  into  consideration  while  imposing  the  

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punishment and it  also referred to the consideration of  the past  

record of the employee.

25. In  view  of  the  above,  it  is  evident  that  it  is  desirable  that  

delinquent employee may be informed by the disciplinary authority  

that  his  past  conduct  would   be  taken  into  consideration  while  

imposing  the  punishment.   But  in  case  of  misconduct  of  grave  

nature  or  indiscipline,  even  in  absence  of  statutory  rules,  the  

authority  may  take  into  consideration  the  indisputable  past  

conduct/service record  of the employee for adding the weight to the  

decision  of  imposing  the  punishment  if  the  facts  of  the  case  so  

require.  

26. It is settled legal preposition that habitual absenteeism means  

gross violation of discipline [vide Burn & Co. Ltd. v. Wormess, AIR  

1959 SC 529; and  L&T Komatsu Ltd. v. N. Udayakumar, (2008) 1  

SCC 224)].

27. The instant case is  required to be examined in the light  of  

aforesaid  settled  legal  prepositions.  Admittedly,  the  respondent  

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employee has not completed the service of six years and had been  

imposed punishment three times for remaining absent from duty.  

On  the  fourth  occasion  when  he  remained  absent  for  10  days  

without  leave,  the  disciplinary  proceedings were  initiated against  

him.

28. The show cause notice could not be served upon him for the  

reason that he again deserted the LINE and returned back after 50  

days. Therefore the disciplinary proceedings could not be concluded  

expeditiously.   The  respondent  submitted  the  reply  to  the  show  

cause  notice  and  the  material  on  record  reveal  that  during  the  

pendency of the enquiry he further deserted the LINE for 10 days.  

There  is  nothing  on  record  to  show  any  explanation  for  such  

repeated  misconduct  or  absenteeism.   The  Court/Tribunal  must  

keep  in  mind  that  such  indiscipline  is  intolerable  so  far  as  the  

disciplined  force  is  concerned.   The  respondent  was  a  guard  in  

CISF.   No  attempt  had  ever  been  made  at  any  stage  by  the  

respondent-employee  to  explain  as  to  what  prejudice  has  been  

caused to him by non-furnishing of the enquiry report. Nor he ever  

submitted  that  such  a  course  has  resulted  in  failure  of  justice.  

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More so, the respondent employee had never denied at any stage  

that he had not been punished three times before initiation of the  

disciplinary  proceedings  and  deserted  the  LINE  twice  even  after  

issuance  of  the  show  cause  notice  in  the  instant  case.   No  

explanation  could  be  furnished  by  the  respondent-employee  as  

under what circumstances he has not even consider it  proper to  

submit the application for leave.  Rather, the respondent thought  

that he had a right to desert the LINE at his sweet will.  It was a  

case of gross violation of discipline. Appeal filed by the respondent  

employee was decided by the Statutory Appellate Authority giving  

cogent  reasons.  The  facts  of  the  case  did  not  present  special  

features  warranting  any  interference  by  the  Court  in  limited  

exercise of its powers of judicial review.  In such a fact situation, we  

are of the view that the High Court should not have interfered with  

the punishment order passed by the disciplinary authority on such  

technicalities.    

29. In view of the above, the appeal succeeds and is allowed.  The  

impugned judgment and order of the Division Bench of the High  

Court dated 31.1.2002 in FMAT No.1370 of 1992 and judgment and  

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order dated 16.7.1991 of the learned Single Judge passed in Civil  

Order No.3885 W of  1987 are hereby set aside and the order of  

punishment imposed by the statutory authority is hereby restored.  

No costs.

…………………………………….J. (Dr. Mukundakam Sharma)

…………………………………….J. (Dr. B.S. Chauhan)

New Delhi; 26th May,  2009.

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Digital Proforma

1. Case No. : Civil Appeal No. 7087 of 2002

2. Date of decision : 26.5.2009

3. Cause Title : Union of India & Ors. vs.

Bishamber Das Dogra

4. Coram : Hon’ble Dr. Justice Mukundakam Sharma Hon’ble Dr. Justice B.S. Chauhan

5. Date of C.A.V. : 18.5.2009

6. Judgment delivered : Hon’ble Dr. Justice B.S. Chauhan by

7. Nature of Judgment : Reportable whether reportable

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