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PETITIONER: CHANDRAMA TEWARI

       Vs.

RESPONDENT: UNION OF INDIA, THROUGH GENERAL MANAGER, EASTERN RAILWAYS

DATE OF JUDGMENT18/11/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR  117            1988 SCR  (1)1102  1987 SCC  Supl.  518     JT 1987 (4)   398  1987 SCALE  (2)1058  CITATOR INFO :  E&R        1989 SC 885  (14)

ACT:      Disciplinary proceedings  resulting in  dismissal  from service-Whether null  and void as a result of failure of the Enquiry Officer  to comply  with the  principles of  natural justice.

HEADNOTE: %      Coal  lying   at  the   Pusauli  Railway   Station  was fraudulently removed  by some person, giving out his name as Shambhu Tiwari,  a coal  contractor.  A  criminal  case  was registered, but  on account  of absence of reliable evidence final report  was submitted.  During the preliminary enquiry held by  the Department, it was found that Chandrama Tewari, the appellant, who was posted as a fireman at Moghulsarai in the Northern Railway, had removed the coal posing himself as Shambhu Tiwari.  A charge-sheet was issued to the appellant. An Enquiry  Officer was  appointed before  whom evidence was recorded. The  appellant was  afforded full  opportunity  of cross-examining the  witnesses. The Enquiry Officer held the appellant guilty  of the  charges framed  against  him.  The punishing authority  accepted  the  report  of  the  enquiry officer and  passed orders,  dismissing the  appellant  from service. The  appellant filed a civil suit for a declaration that  the   punishment  of   dismissal   was   illegal   and unconstitutional mainly  on the  ground that the enquiry had been held  in violation of the principles of natural justice and  he   was  denied  reasonable  opportunity  of  defence, inasmuch as  a copy of paper No. 5, mentioned in the Memo of charges, had not been supplied to him.      The trial  court decreed  the suit.  The decree  of the trial court  was confirmed  in appeal by the District Judge. On a second appeal by the Union of India, the High Court set aside the  decisions of the subordinate courts, holding that the appellant  had been  afforded reasonable  opportunity of defence and there had been no violation of the principles of natural justice  in the  enquiry. The  appellant appealed to this Court against the order of the High Court.      Dismissing the appeal, the court,

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1103 ^      HELD: It  is not necessary that each and every document must be supplied to the delinquent government servant facing charges; instead,  only material  and relevant documents are necessary to  be supplied  to him. If a document even though mentioned in  the Memo  of charges  is not  relevant to  the charges or  if it  is not  referred to or relied upon by the enquiry officer  or the  punishing authority  in holding the charges proved  against the government servant, no exception can be taken to the validity of the proceedings or the order passed on the ground of non-supply of the copy of the order. If a  document is  not used  against the  party charged, the ground of  violation of principles of natural justice cannot be successfully  raised.  Violation  of  the  principles  of natural justice arises only when a document, a copy of which may not  have been supplied to the party charged, is used in recording findings of guilt against him. [1105G-H; 1106A-B]      Copy of paper No. 5, mentioned in the charge-sheet, was not supplied  to the  appellant and  he was not permitted to inspect the  same. But  that document was not considered, or relied upon by the enquiry officer in recording the findings against the  appellant. Therefore, the paper No. 5 was not a material or  relevant document, and denial of a copy of that document did  not prejudice  the appellant  and there was no violation of  the principles  of natural justice involved in the case. The enquiry was fair. [1109D-E]      State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623; Trilokinath v.  Union of  India and  Ors., [1967]  SLR  759; State of Assam & Anr. v. Mahendra Kumar Das & Ors., [1971] 1 SCR 87;  State of  Punjab v.  Bhagat Ram,  [1975] 2 SCR 370; State of  Uttar Pradesh v. Mohd. Sharif, AIR 1982 SC 937 and Kashinath Dikshita  v. Union of India and Ors., [1986] 3 SCC 229; relied upon by the appellant.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 146 of 1981.      From the  Judgment and  Order dated  10.5.1979  of  the Allahabad High Court in S.A. No. 512 of 1975.      M.K. Ramamurthi,  Syed Ali Ahmad, Mrs. Jayashree Ahmad, Syed Tanweer Ahmad and Mohan Pandey for the Appellant.      V.C. Mahajan,  Hemant Sharma and C.V. Subba Rao for the Respondent. 1104      The Judgment of the Court was delivered by      SINGH, J.  The short  question  which  arises  in  this appeal is whether the disciplinary proceedings taken against the appellant  resulting in  his dismissal are null and void as the  Enquiry Officer failed to comply with the principles of natural  justice in  holding the  enquiry.  The  question relating to  the non-compliance  of  principles  of  natural justice is founded on the grievance that a copy of paper No. 5 although mentioned in the memo of charges was not supplied to the  appellant, and  that he was not permitted to inspect the same.  A learned  single Judge  of the  High  Court  has answered the  question against  the  appellant.  Hence  this appeal.      The appellant  was posted  as fireman at Moghulsarai in Northern Railway  in May,  1964. On 28th May 1964 coal lying at Pusauli  Station was  fraudulently removed by some person giving out  his name  as Shambhu Tiwari. A criminal case was registered, but  on account of absence of reliable evidence,

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a final  report was  submitted. It  appears that  during the preliminary enquiry held by the Department it was found that Chandrama Tewari,  the appellant  had removed the coal lying at Pusauli  Station posing himself as Shambhu Tiwari, a coal contractor. On  completion  of  the  preliminary  enquiry  a charge sheet  was issued  to the  appellant on 6.2.1967. The appellant filed  reply to  the charges  denying the same. An Enquiry Officer  was  appointed  before  whom  evidence  was recorded and  the appellant was afforded full opportunity of cross-examining the witnesses. The Enquiry Officer submitted his report  holding the  appellant guilty  of charges framed against him.  The punishing  authority accepted  the enquiry report  and   issued  orders  on  27.6.1969  dismissing  the appellant from the service. The appellant filed a civil suit in the  Trial Court for a declaration that the punishment of dismissal awarded  to him  was illegal  and unconstitutional mainly on  the ground  that the  enquiry had  been  held  in violation of  the principles  of natural  justice and he was denied reasonable  opportunity of defence. A number of other grounds were  also raised  in the  suit which  need  not  be adverted as  the controversy now is confined to the question of violation of the principles of natural justice alone. The trial court  decreed the  appellant’s suit on 31.1.1974. The decree of  the trial  court was  confirmed in  appeal by the District Judge  by his  order dated  2.11.1974. On  a second appeal being  filed by the Union of India the High Court set aside the  judgment and  decree of the subordinate courts on the findings that the appellant had been afforded reasonable opportunity of  defence and  there was  no violation  of any principles of natural justice in the enquiry. 1105      Learned counsel  for the appellant Shri M.K. Ramamurthy contended that  the memo  of charges issued to the appellant expressly mentioned  that paper  No. 5  was proposed  to  be relied by  the Department against the appellant but in spite of demand  being made  by  the  appellant  a  copy  of  that document was  not supplied  to him  nor was  he permitted to inspect the  same. In  the  absence  of  that  document  the appellant was  handicapped in cross-examining Shri A.C. Das, Dy. S.P., S.P.E. He further urged that failure to supply the copy of  paper No.  5 was  in violation of the principles of natural justice  rendering the proceedings, resulting in the order of  dismissal as void. He placed reliance on decisions of this  Court in  State of Madhya Pradesh v. Chintaman, AIR 1961 SC  1623; Trilokinath  v. Union of India & Ors., [1967] SLR 759;  The State  of Assam & Anr. v. Mahendra Kumar Das & Ors., [1971] 1 SCR 87; State of Punjab v. Bhagat Ram, [1975] 2 SCR  370; State of Uttar Pradesh v. Mohd. Sharif; AIR 1982 SC 937  and Kashinath  Dikshita v.  Union of  India &  Ors., [1986] 3 SCC 229.      We  have   given  our   anxious  consideration  to  the submissions made  on behalf  of the  appellant and  we  have further considered  the aforesaid authorities referred to by the learned counsel for the appellant but we do not find any merit in the appellant’s submissions to justify interference with  the   High  Court’s   judgment.  Article  311  of  the Constitution requires that reasonable opportunity of defence must be  afforded to  a  government  servant  before  he  is awarded  major   punishment   of   dismissal.   It   further contemplates that  disciplinary  enquiry  must  be  held  in accordance with  the Rules  in a  just and  fair manner. The procedure  at  the  enquiry  must  be  consistent  with  the principles of natural justice. Principles of natural justice require that  the copy  of the  document if  any relied upon against the  party charged  should be  given to  him and  he

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should  be   afforded  opportunity   to  cross-examine   the witnesses and  to produce  his own witnesses in his defence. If findings  are recorded  against  the  government  servant placing reliance  on a  document which  may  not  have  been disclosed to  him or  the copy  whereof may  not  have  been supplied to  him during  the  enquiry  when  demanded  would contravene  principles  of  natural  justice  rendering  the enquiry, and  the consequential  order of punishment illegal and void.  These principles  are well settled by a catena of decisions of this Court. We need not refer to them. However, it is  not necessary  that each  and every  document must be supplied to  the delinquent  government servant  facing  the charges instead  only material  and relevant  documents  are necessary to  be supplied  to him. If a document even though mentioned in  the memo  of charges  is not  relevant to  the charges or  if it  is not  referred to or relied upon by the enquiry officer or the punishing 1106 authority  in   holding  the   charges  proved  against  the government  servant,  no  exception  can  be  taken  to  the validity of the proceedings or the order. If the document is not used  against the  party charged the ground of violation of principles  of natural  justice  cannot  successfully  be raised. The  violation  of  principles  of  natural  justice arises only when a document, copy of which may not have been supplied to  the party  charged when  demanded  is  used  in recording  finding  of  guilt  against  him.  On  a  careful consideration of  the authorities  cited on  behalf  of  the appellant we  find that  the obligation  to supply copies of documents  is   confined  only   to  material  and  relevant documents and the enquiry would be vitiated only if the non- supply of  material and relevant documents when demanded may have caused prejudice to the delinquent officer.      In State of Madhya Pradesh v. Chintaman, the respondent who was  a police  officer was  dismissed  from  service  on certain charges.  The High  Court of  Madhya Pradesh quashed the order  of dismissal  on the finding that the enquiry was held in violation of the principles of natural justice in as much  as   the  statement   of  witnesses  recorded  in  the preliminary enquiry  were  not  supplied  to  the  concerned officer as a result of which he could not effectively cross- examine the  witnesses produced  before the enquiry officer. This Court while upholding the view taken by the High Court, observed that  the  departmental  enquiries  should  observe rules  of   natural  justice.  The  Court  referred  to  the observations of  Venkatarama Aiyar,  J. in Union of India v. T.R. Verma,   [1958] SCR 499 "stating it broadly and without intending it  to be exhaustive it may be observed that rules of natural  justice require  that a  party should  have  the opportunity of  adducing all  relevant evidence  on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the  witnesses examined  by that  party, and that no material should be relied on against him without his being given  an opportunity  of explaining them". Relying on the aforesaid  observations the  Court held  that  right  to cross-examine  witnesses   who  give   evidence  against   a delinquent officer is a very valuable right and if effective exercise of  that right  is prevented by the enquiry officer by not  giving to  officer relevant  document to which he is entitled, the  enquiry cannot  be said  to have been held in accordance  with  the  principles  of  natural  justice.  In Triloki Nath v. Union of India, it was held that if a public servant facing  enquiry was not supplied copies of documents it would amount to denial of reasonable opportunity. In that

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case  the   statement  of   witnesses  recorded  during  the investigation of  the criminal  case registered  against the delinquent officer prior to the 1107 departmental proceedings  had not been supplied to him, as a result of which the delinquent officer was prejudiced in his defence at the enquiry.      In State  of Assam  and Anr.  v. Mahendra  Kumar Das  & ors.J dismissal  of a police sub-inspector in pursuance of a disciplinary enquiry  held against him had been set aside by the High  Court on  the ground  that the enquiry officer had during   the   course   of   the   enquiry   consulted   the Superintendent of  Police, Anti-Corruption  Branch  and  had taken into  consideration certain material gathered from the AntiCorruption Branch,  without  making  the  said  material available to  the sub-inspector.  On appeal  by the State of Assam this  Court held  that it  was improper for an enquiry officer during  the conduct  of an  enquiry to  collect  any material  from  outside  sources  and  in  not  making  that material available  to the  delinquent  officer.  The  Court observed that  if  the  enquiry  officer  collects  material behind the  back of the delinquent officer and such material is  relied   upon  by  the  enquiry  officer  without  being disclosed to the delinquent officer, the enquiry proceedings would be  vitiated. After  making  these  observations  this Court recorded  a finding  that the  enquiry officer had not taken into  consideration  the  material  contained  in  the records of  Anti-Corruption Branch, and therefore failure to supply the  material of  the AntiCorruption  Branch  to  the delinquent officer  was of  no consequence  and it could not vitiate the  enquiry. The  Court set  aside the order of the High Court  on the  finding that there had been no violation of principles of natural justice.      In State  of Punjab  v. Bhagat Ram, copies of statement of witnesses  recorded during  investigation and produced at the disciplinary  enquiry in  support of  the charges framed against the  delinquent officer were not supplied, instead a synopsis of  the statements  had been  supplied to him. This Court upheld the order of the High Court on the finding that it was  unjust and  unfair to  deny the  government  servant copies   of   statement   of   witnesses   recorded   during investigation  and   produced  in  support  of  the  charges levelled against  the government  servant. In the absence of the copies  of the  statement of  witnesses  the  government servant could  not have  opportunity of effective and useful cross-examine  of   the  witnesses   produced   during   the disciplinary enquiry.  The Court  observed that  synopsis of statement did  not satisfy  the requirement  of  giving  the government servant  a reasonable  opportunity. Same view was taken by  this Court  in State  of Uttar  Pradesh  v.  Mohd. Sharif, as  in that  case also  copies of  the statement  of witnesses recorded  at  the  preliminary  enquiry  were  not furnished to 1108      the delinquent government officer, as a result of which the delinquent  officer could  not effectively cross-examine the witnesses before the enquiry officer.      In Kashinath  Dikshita v.  Union of  India & ors., this Court set  aside the  order of dismissal of a police officer on the  finding that during the departmental proceedings the officer concerned  was not supplied the copies of statements made by  the witnesses  at a  pre-enquiry stage and also the copies of  the documents  on which  reliance was  placed  in support of  the charges,  in spite of specific request being made by  the officer.  The Court  held  that  the  order  of

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dismissal was violative of Article 311 (2) in as much as the officer had  been denied reasonable opportunity of defending himself. While  setting aside  the order  of  dismissal  the Court observed  that whether or not refusal to supply copies of documents  or statements  has resulted in prejudice to an officer facing the departmental enquiry depends on the facts of each  case.  After  making  this  observation  the  Court examined the  circumstances of  that case and concluded that since 38  witnesses were  examined against the officer and a large number  of documents  were relied upon against him and the disciplinary  authority should  have supplied the copies of  the   statement  of   witnesses  recorded   during   the preliminary enquiry  as we  as the  copies of the documents. Wherein agreement with the view taken in this decision      It is  now well  settled that if copies of relevant and material documents  including  the  statement  of  witnesses recorded in  the preliminary enquiry or during investigation are not  supplied  to  the  delinquent  officer  facing  the enquiry and  if such  documents are  relied in  holding  the charges proved  against the  officer, the  enquiry would  be vitiated for the violation of principles of natural justice. Similarly, if the statement of witnesses recorded during the investigation of  a criminal  case  or  in  the  preliminary enquiry is  not supplied  to the delinquent officer, as that would amount  to denial  of opportunity  of effective cross- examination. It  is difficult to comprehend exhaustively the facts and  circumstances which  may  lead  to  violation  of principles  of  natural  justice  or  denial  of  reasonable opportunity of  defence. This question must be determined on the facts  and circumstances of each case. While considering this question  it has  to be borne in mind that a delinquent officer is  entitled to have copies of material and relevant documents only  which may  include the  copy of statement of witnesses recorded  during the  investigation or preliminary enquiry or  the copy  of any  other document  which may have been relied  in support of the charges. If a document has no bearing on the charges or if it is not relied by the 1109 enquiry officer  to support the charges, or if such document or material  was not  necessary for the cross-examination of witnesses during the enquiry, the officer cannot insist upon the supply  of copies  of such  documents, as the absence of copy of  such document  will not  prejudice  the  delinquent officer. The  decision of the question whether a document is material or not will depend upon the facts and circumstances of each case.      In the instant case there is no denying the fact that a copy of paper No. 5 as mentioned in the charge sheet was not supplied to  the appellant  and  he  was  not  permitted  to inspect the same. It appears that paper No. 5 was the report submitted by  the Special Police Establishment in respect of the criminal  case of  theft of  coal, in which final report had been  submitted. After submission of final report in the criminal case disciplinary enquiry was initiated against the appellant. Paper  No.  5  (the  report)  was,  however,  not considered or  relied by  the enquiry  officer in  recording findings against  the appellant. We have perused the copy of the report  of the enquiry officer furnished to the Court by the appellant  but we do not find any reference to paper No. 5 therein.  The enquiry  officer has  not either referred to nor relied  upon that  report in  recording findings  on the charges framed  against the  appellant.  In  this  view  the report (paper No. 5) was not a material or relevant document and denial  of copy  of that  document could not and did not prejudice the  appellant  and  there  was  no  violation  of

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principles of  natural justice.  The  appellant’s  grievance that in  the absence  of report  he  could  not  effectively cross-examine Shri  A.C. Das,  Dy. S.P.  Of  Special  Police Establishment,   the    investigating   officer,    is   not sustainable. A  copy of  the statement  as recorded  by  the enquiry officer  has been  placed before us by the appellant on a  perusal of  the same  we find  that Shri A.C. Das, was cross-examined at length in detail. His examination-in-chief is confined  to one  page while  his cross-examination  runs into six full scape typed pages. The appellant has failed to point out  as to  how he  was prejudiced. In our opinion the appellant was  not handicapped  in cross-examining Shri A.C. Das, his  grievance that  he  was  not  afforded  reasonable opportunity of defence is without any merit.      In view  of the  above discussion we hold that the High Court was  right, in  holding that  the enquiry was fair and the principles of natural justice had not been violated. The appeal fails  and is accordingly dismissed. There will be no order to costs. S.L.                                       Appeal dismissed. 1110