REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 254 OF 2008

STATE OF U.P. & ORS.            .APPELLANT(S)

        VERSUS

SAROJ KUMAR SINHA         .…RESPONDENT(S)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

This  appeal  has  been  filed  by  the  State  of  U.P.  

challenging  the  order  passed  by  the  High  Court  of  

Judicature at Allahabad,  Lucknow Bench, Lucknow in Writ  

Petition No.46 (S/B) of 2005 whereby the High Court allowed  

the writ petition of the respondent by quashing and setting  

aside the order of his removal dated 24.12.2004 and further  

directing his reinstatement in service with all consequential  

benefits.   

2. The  respondent  had  been  in  the  service  of  the  

appellant  since  17.5.1971.  During  the  period  6.1.2001  to  

12.2.2001 and from 17.3.2001 to 28.4.2003 he was posted  

as  Executive  Engineer  at  Construction  Division-I,  Public  

Works Department (P.W.D.), Rai Barielly. While functioning

at Rai Barielly, he was served with the charge sheet dated  

24.2.2001  under  Rule  7  of  the  U.P.  Government  Servant  

(Discipline & Appeal) Rules, 1999 (hereinafter referred to as  

1999  Rules)  making  serious  allegations  of  misconduct  

against him.   

3. The respondent having been initially selected through  

the  Lok  Sewa  Ayog,  U.P.  was  appointed  as  an  Assistant  

Engineer in the Public Works Department on 17.5.1971 in a  

substantive  capacity.  In  due  course  he  was  promoted  as  

Executive Engineer.  

4. We may notice here that  the 1999 Rules  have been  

promulgated  by  the  Governor  of  U.P.  in  exercise  of  the  

powers  conferred  by  the  proviso  to  Article  309  of  the  

Constitution  of  India.   The  Rules  prescribe  detailed  

procedure to be followed in matters of enforcing discipline  

and  imposing  penalties/punishments  against  government  

servants in U.P., in cases of proven misconduct. Rule 3 gives  

a list of minor and major penalties that may be imposed by  

the  appointing  authority  on  the  government  servants.  

Removal from service is a major penalty.  Rule 4 provides  

that the government servant may be suspended in case an  

enquiry is  contemplated against  him. In the present  case,  

the  respondent  was  suspended  on  5.2.2001  prior  to  the  

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issue of the charge sheet dated 24.02.2001.  We presume it  

was  in  contemplation  of  the  forthcoming  disciplinary  

proceedings against  him.  Rule  7 prescribes in detail,  the  

procedure  and  the  manner  in  which  an  enquiry  shall  be  

conducted  before  imposing  any  major  penalty  on  a  

government servant.  Rule 7 sub rule (2) provides the facts  

constituting the misconduct on which it is proposed to take  

action  shall  be  reduced  in  the  form of  definite  charge  or  

charges to be called charge sheet.  This charge sheet has to  

be approved by the disciplinary authority.  Rule 7 sub rule  

(3)  further  provides  that  the  charge(s)  framed  shall  be  so  

precise  and  clear  as  to  give  sufficient  indication  to  the  

charged government servant of the facts and circumstances  

against him.  It is mandatory that the proposed documentary  

evidence and the name of witnesses proposed to prove the  

charges  together  with  any  oral  evidence(s)  that  may  be  

recorded  be  mentioned  in  the  charge  sheet.   Thereafter  

under Rule 7 sub rule (4) the government servant is given an  

opportunity  to  put  in a written statement,  of  his  defence,  

within a specified period of time which shall not be less than  

15 days.  The government servant is also required to indicate  

whether  he  desires  to  cross  examine  any  witnesses  

mentioned in charge sheet. Thereafter he is to be informed  

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that in case he does not appear or file the written statement  

it will be presumed that he does not intend to furnish any  

defence. In such circumstances the enquiry shall proceed ex  

parte.  Sub rule 5 of Rule 7 mandates that the copies of the  

documentary evidence mentioned in the charge sheet has to  

be served on the government servant along with the charge  

sheet.  The aforesaid sub rule is as under:

“(v)  The  charge-sheet,  along  with  the  copy  of  documentary  evidences  mentioned  therein  and  list  of  witnesses  and  their  statements,  if  any  shall  be  served  on  the  charged  Government  servant personally or by registered post at the  address mentioned in the official records in case  the  charge-sheet  could  not  be  served  in  aforesaid  manner  the  charge-sheet  shall  be  served  by  publication  in  a  daily  newspaper  having wide circulation:

Provided that where the documentary evidence  is  voluminous,  instead  of  furnishing  its  copy  with  charge-sheet,  the  charged  Government  servant shall be permitted to inspect the same  before the Inquiry Officer.”

5. A perusal of the aforesaid rule would clearly show that  

the disciplinary authority is duty bound to make available all  

relevant  documents  which  are  sought  to  be  relied  upon  

against the government servant in proof of the charges.   It is  

only  when  the  charge  sheet  together  with  documents  is  

supplied that the government servant can be said to have  

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had an effective and reasonable opportunity to present his  

written statement of defence.   

6. Keeping in view the mandate of the aforesaid sub rule  

the  respondent  made  a  written  request  to  the  appellant  

demanding  copies  of  the  documents  relied  upon  in  the  

charge sheet.  This representation was dated 10.6.2001.  In  

spite  of  the  mandate  of  the  1999  Rules  neither  the  

disciplinary  authority  nor  the  enquiry  officer  made  the  

documents  available  to  the  respondent  rather  a  reminder  

was issued to him by the enquiry officer  on 15.6.2001 to  

submit the reply to the charge sheet.     

7. Apprehending that the inquiry officer may be biased  

respondent submitted a representation on 19/6/2001 to the  

Government for change of the inquiry officer. This request of  

the respondent was accepted by the Government by office  

memo dated 22.9.2001. It later transpired that the inquiry  

officer, Mr. I.D. Singhal, had already completed the inquiry  

report  on  3.8.2001  whereas  the  new  inquiry  officer,  G.S.  

Kahlon was appointed on 22.9.2001.  The respondent  only  

came to know about the existence of  inquiry report  dated  

3.8.2001 in the month of April, 2003.

8. Being  unaware  of  the  inquiry  report  dated 3.8.2001  

respondent made the representation dated 6.10.2001 to the  

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new inquiry  officer,  G.S.  Kahlon praying for supply of  the  

relevant documents numbering 19 to enable him to prepare  

an appropriate reply to the charge sheet and to prepare his  

defence. Since,  no response was received from the inquiry  

officer  the  respondent  sent  a  reminder  dated  22.11.2001.  

The  last  reminder  submitted  by  the  respondent  is  dated  

3.3.2002.   

9. The respondent later came to learn that the inquiry  

officer had addressed a communication to the Government  

dated  8.4.2002  stating  that  the  inquiry  report  dated  

3.8.2001 submitted by the former inquiry  officer,  Mr.  I.D.  

Singhal “seems to be correct” because the delinquent officer  

should  be  deemed  to  have  accepted  the  charges  levelled  

against  him  inasmuch  as  he  had  not  submitted  the  

reply/explanation to the charge sheet.  Based on the inquiry  

report dated 8.4.2002, which merely reiterated the findings  

in the inquiry report dated 3.8.2001, respondent was served  

a show cause notice dated 29.4.2003.  

10.  At this stage the respondent challenged the issuance  

of  the  show cause  notice  in  Civil  Writ  Petition  No.937  of  

2003.  The  respondent  had  sought  quashing  of  the  two  

inquiry reports as well as the show cause notice.  He also  

made a prayer that a fresh inquiry be conducted by giving  

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appropriate opportunity to him to submit his defence.  The  

aforesaid  writ  petition  was  disposed  of  with  the  following  

order:  

“We do not intend to interfere with the matter  but  would  like  to  observe  that  we  have  not  adjudicated  the  matter  of  the  petitioner  on  merits nor we intend to observe that the case set  up  by  the  petitioner  is  correct  on  merit,  therefore, it will be open to the petitioner to put  his  case  before  the  authority  concerned  while  submitted his reply to the Show Cause Notice. In  case such a reply is given within a period of 15  days,  the  same  shall  be  considered  before  passing any final orders in the matter.”

11. The  respondent  furnished  the  certified  copy  of  the  

aforesaid  order  to  the  appellant  on  25.7.2003.   In  this  

communication  respondent  also  mentioned  that  he  would  

soon submit a detailed representation/reply in response to  

the  show  cause  notice  dated  29.4.2003.  He  accordingly  

submitted  the  representation  on 6.8.2003 briefly  touching  

upon the circumstances in which the aforesaid two inquiries  

were held.  He pointed out that the aforesaid two inquiries  

had  been  held  in  patent  violation  of  principles  of  natural  

justice,  fairness  and  justice,  as  well  as  the  basic  

requirements  of  law  relating  to  departmental  inquiry.  The  

respondent reiterated his  utter  helplessness  in making an  

effective reply to the show cause notice as he had not been  

supplied  the  relevant  documents  in  spite  of  numerous  

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representations  and reminders.  He  again  made  a  plea  for  

supply of documents.  

12. Ultimately  the  respondent  was  served  a  copy  of  

communication  dated  19.11.2003  from  the  office  of  the  

Executive  Engineer  (Prantiya  Khand),  P.W.D.  Rai  Bareilly  

addressed  to  the  Executive  Engineer  (Nirman  Khand-I),  

P.W.D.,  Rai  Bareilly  directing  supply  of  the  copies  of  the  

relevant  documents  to  the  respondent.  A  perusal  of  this  

letter  would  clearly  show  that  the  documents  were  not  

available  in  the  office  of  the  Executive  Engineer  (Nirman  

Khand-I). The observations made by the Executive Engineer  

(Prantiya  Khand)  in  his  communication  dated  19.11.2003  

are as under:

“Therefore,  you are requested to collect  the  aforesaid  three  letters  issued  from  the  Government level and five letters issued from  the  level  of  Engineer-in-Chief  level  and  two  letters  from  your  own  level  and  as  per  the  direction by the Government send the same to  Sh.  S.K.  Sinha,  Executive  Engineer  at  his  Lucknow address.”  

13. Inspite  of  this  direction  the  documents  were  not  

supplied.  The  respondent  therefore  again  made  a  

representation  to  the  inquiry  officer  on  30.11.2003  for  

supply of certified photocopies of the relevant documents.

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14. It  was  not  disputed  before  the  High  court  nor  is  it  

disputed before us that the documents were not supplied to  

the respondent.  In fact, in the counter affidavit filed before  

the  High  Court,  in  reply  to  the  grievance  made  by  the  

respondent  in  the  writ  petition,  about  non-supply  of  the  

documents, it has been stated as under:    

“Petitioner  has  requested  for  supply  of  certain  documents  to  the  enquiry  officer  regarding which it is stated that the petitioner  has  been  informed  that  the  documents  pertains to the division in which petitioner has  been posted as Executive Engineer.  Therefore,  it was not required to supply the same as the  documents  were  in  his  custody  and  the  petitioner has deliberately delayed the filing of  reply.  Therefore, Enquiry Officer has sent the  enquiry report after the completion of enquiry  to  the  Govt.  on  the  basis  of  documents  on  03.08.2001.”

15. Thereafter  the  then  Principal  Secretary,  PWD,  Shri  

Chandra Pal  addressed  a communication on 16.4.2004 to  

the Secretary of Public Service Commission, U.P., Allahabad  

recommending  and  proposing  the  punishment  of  removal  

from service as well as recovery of the sum of Rs.1,29,600/-  

be  inflicted  on  the  respondent.  Aggrieved  by  the  

recommendation the respondent addressed a representation  

to the Commission setting out  the entire  factual  situation  

vide communication dated 30.5.2004.  

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16. Further  more,  the  respondent  again  moved  the  

Allahabad High Court by preferring Civil Writ Petition No.793  

(SB) of 2004. In this writ petition respondent had made a  

prayer  to  restrain  the  appellant  from  taking  any  final  

decision  with  regard  to  the  proposed  removal  of  the  

respondent from service. In the aforesaid writ petition, the  

Division Bench passed an interim order on 17.6.2004 with  

the observations as under:

“In the meantime,  opposite parties no.1 and 2  are  expected  to  ensure  the  compliance  of  the  order passes by the Division Bench of this Court  on 23.7.2003 as contained in Annexure No.6 of  this writ petition. Further representation of the  petitioner,  if  submitted  in  pursuance  of  the  order passed by this Court on 23.7.2003, shall  be  considered  before  conclusion  of  the  departmental inquiry and passing final order.”

17. It is the claim of the respondent that despite the pre-

emptory direction of the High Court in the aforesaid order  

appellant-Government  passed  the  order  of  removal  dated  

24.12.2004  removing  the  respondent  from  service  and  

directed recovery of Rs.1,29,600/- from him. Passing of the  

aforesaid order was brought to the notice of the High Court  

by the respondent, which by order dated 12.1.2005 directed  

that  no  recovery  shall  be  made  from  the  respondent  

pursuant to the order of removal.

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18. Upon due consideration of the extensive pleadings of  

the parties,  the Division Bench has recorded the following  

conclusions:   

“After  hearing  the  rival  submission  of  learned  counsel  for  the  parties  as  well  as  the  averments made in the affidavits, we are of the  view  that  the  inquiry  officer  has  not  afforded  opportunities to the petitioner insofar as he fails  to supply the documents to the petitioner which  he  has  relied  while  framing  the  charges  and  further  the  petitioner  was  not  afforded  opportunity to lead the evidence and also denied  the  opportunities  to  cross-examination  of  the  person.   The  inquiry  officer  has  also  failed  to  prove  the  charges  during  the  inquiry  proceedings  by  the  recording  any  evidence.  Thus, the inquiry is vitiated and is violation of  principle of natural justice.”

19. With  these  observations  the  writ  petition  has  been  

allowed.  The appellant has been directed to reinstate the  

respondent  with  all  consequential  benefits.   However,  the  

State  was  granted  liberty  to  conduct  fresh  inquiry  in  

accordance with law and the principles of natural justice.

20. We have heard the learned counsel for the parties.  

21. We have noticed at some length the sequence of events  

and the efforts made by the respondent to receive copies of  

the documents which were relevant for the preparation of his  

defence in the departmental  inquiry.  As noticed earlier  all  

the requests made by the respondent fell  on deaf ears. In  

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such circumstances, the conclusions recorded by the High  

Court were fully justified.  

22.  Copies of the documents which formed the foundation of  

the charge sheet against the respondents have been denied  

to the respondent on the lame excuse, as projected in the  

pleadings of the appellant, at different stages before the High  

Court  as  well  as  this  Court,  that  the  respondent,  at  the  

relevant  time,  was  posted  in  the  same  division  and  the  

documents could have been received by him and the reply  

could  have  been given.  According to  the  appellant  all  the  

concerned documents were with the Division in which the  

petitioner  (respondent  herein)  was  posted  as  Executive  

Engineer. In the counter-affidavit filed in the High Court it is  

specifically  mentioned  that  the  documents  pertain  to  the  

same division in which the respondent had been posted as  

Executive Engineer and therefore he being in knowledge and  

custody of the said documents, there was no requirement for  

the said documents to be supplied to the respondent. The  

very same submission has been reiterated before us by the  

learned  Counsel  of  the  Appellants.  In  our  opinion,  the  

submission is without any basis as the respondent had been  

suspended  on  5.2.2001.  Even  if  the  respondent  had  

continued in the same department it would not have been  

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possible for him to take the custody of the documents as he  

would no longer be in charge of the office. Further more, it is  

evident from the letter dated 19.11.2003 that the documents  

had to be collected from different offices and made available  

to the respondent.  This fact is so mentioned in the letter of  

the  Executive  Engineer.  In  such  circumstances,  we  are  

unable to accept the submission of the learned counsel for  

the  appellants  that  it  was  possible  for  the  respondent  to  

make an effective representation against the charge sheet.  

23. At  this  stage  it  would  be  appropriate  to  notice  the  

charges that had been framed against the respondent which  

are as under:

“I. Work pertaining to Salon Jagat Pur Road, had  been  given  to  Sri  Jitendra  Mohan  Bajpai,  Contractor  vide  Tender  No.5/AE-2  dated  10.06.1996  through  3054-PW  Work  Plan.  The  last payment of the Tender has been paid by the  then Executive Engineer Sri Akash Deep Sonkar  and accordingly payment of Rs.193047/- was to  be  paid  vide  cheque  No.13/256064  dated  02.08.1996.   Thereafter  you  have  made  this  payment  through  No.142  dated  31.12.1998  to  the  amount  of  Rs.193047  through  Cheque  No.78/001355 dated 31.12.1998.  At page 138  of the Cash Book Part-73, Entry No. illegible has  been  made.   You  have  deliberately  made  aforesaid  entry  in  order  to  cause  loss  to  the  Govt. and had made the payment twice through  voucher  No.142 for  the  amount  193047 dated  31.12.1998 and the amount of Rs.193047 has  been  changed  to  134305.   Therefore  the  payment of  Rs.58742 which has already made  

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has been shown to be not paid in the aforesaid  entry.

In  this  manner  you  have  deliberately  caused loss to the Government by the fraudulent  act conspiring for the same and had recovered  Rs.58742/- from the contractor through voucher  No.141 dated 21.3.2000, reason for which has  been  mentioned  that  Rs.58742  has  been  deducted due to excess payment made for the  work at Salon Jagat Pur Road through voucher  No.142 dated 31.12.1998.  Nowhere in voucher  No.142  dated  31.12.1998 it  is  mentioned  that  due to  what  reason deduction has been made  after the issuing of cheque regarding the amount  to be paid which shows bad intention on your  part.   You have made wrong entries  regarding  deduction mention in the voucher amount which  is proved to be violation of financial  handbook  Section-5(Part-1)  para  4  D  and  83.   Voucher  No.141  dated  31.03.2000  and  entry  to  such  effect proves that the Divisional Accounts Officer  has  issued  the  cheque  of  Rs.0185777/-  regarding the aforesaid payment through cheque  and the cheque for amount Rs.0185777/- has  been passed by the Assistant Engineer.  At the  time of issuing cheque deduction of Rs.58742/-  from the amount to be paid makes your conduct  suspicious and you are found responsible for the  misconduct in this regard.  Therefore,  you are  found guilty of misconduct according to Para 3  U.P. Govt. Servant Conduct Rules 1956.

II. You had passed order for supply of mobile  patcher  6  to  M/s  B.N.  Traders,  Karhal  Mainpuri  through  letter  Memo-2/Camp- 72-99  dated  17.07.1999,   M/s  B.N.  Traders,  Karhal  Mainpuri  had submitted  receipt  No.149  regarding  the  aforesaid  supply.  The supply has been passed for  the amount of Rs.129600/- by the Asstt.  Engineer and had been passed by you for  the amount of  Rs.129600/-  vide Cheque  No.96/002075  dated  16.11.1999.  The  Cheque dated 16.11.1999 has been issued  

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to your name which has been provided for  the  payment  to  B.N.  Traders  to  Bank  draft.  In the place of this cheque you had  issued  Cheque  No.005/003492  dated  13.11.1999 for Rs.129600/- to M/s B.N.  Traders and had to be encashed by them.  It  is  clear  from the  documents  that  the  original  cheque  dated  31.11.1999  has  been cut and self  has been inserted and  the cheque has been encashed by you.  In  the counter filed of cheque book name of  M/s  B.N.  Trader  had  been  mentioned.  Therefore,  the  cheque  has  been  wrongly  encashed by you after making fraud entry  by self name and the amount has not been  taken in cash book.  Therefore, the forgery  in this regard is proved.  You have made  bank drafts in favour of M/s B.N. Traders  on 08.03.2000 for Rs.129600/- from State  Bank  of  India,  Rai  Bareilly.   In  the  application of form of the draft the name  of M/s B.N. Traders is mentioned whereas  the order regarding supply of the draft to  M/s  B.N.  Traders,  Karhal,  Mainpuri  has  been made in favour of the firm.  Therefore  bank draft was to be sent on the address  of  Mainpuri.   M/s B.N.  Traders,  Karhal,  Mainpuri  had  informed  Chief  Engineer,  Lucknow  on  28.07.2000  that  you  have  made payment at  the address of  firm in  Mainpuri.   In this regard the bank draft  has been made in the name of M/s B.N.  Traders  and  the  draft  amount  has  been  received in the name of your relative and  no  payment  as  such  has  been  made  to  M/s  B.N.  Traders.   You  had  cut  the  cheque  and  had violated  Para  77 of  the  financial handbook Section 6 and Para 19- 22 of financial handbook Section 5, Part-I.  Receiving  of  payment  after  cutting  the  name  of  firm  from  the  cheque  and  entering our own name (self)  shows that  the  payment  had  been  received  after  committing  fraud.   Again  in  order  to  conceal  this  Act  you  had  made  draft  

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No.PL00008/392289 dated 08.03.2000 for  Rs.129600/- from SBI, Rai Bareilly.  The  bank draft had been made for the address  of Lucknow of the firm not of the address  Karhal, Mainpuri so that the fraud can be  committed and no payment as such has  been  made  to  the  firm.   The  firm  has  alleged  that  you  had  received  payment  after committing fraud therefore, you are  found guilty and misconduct regarding the  misappropriation  of  amount  of  Rs.129600/-  after  committing  fraud  on  the documents and violating the financial  rules.   You are  also  held  guilty  for  mis- conduct  according  to  para  3  U.P.  Govt.  Servant Conduct Rules 1956.   

III. Case  No.37/98  has  been  instituted  for  adjudication  between  M/s  Indian  Coal  Suppliers vs. Govt. of U.P.  The case has  been decided on 05.01.2000 according to  which demand for Rs.26, 00,000/- along  with  interest  has  been  made  by  the  concerned firm from the Department.  The  fact has been in your knowledge that the  option of appeal in the aforesaid case has  been  rejected  by  the  Govt.   In  such  situation  you  had  not  prepared  the  defence  regarding  validity  of  the  agreement  during  framing  of  issues  in  proper  manner.   The  case  has  been  dismissed only on the ground of deficient  Court  Fees.  You  have  deliberately  appointed  Special  Advocate  without  permission of  Govt.,  had not  paid  Court  Fees  and  had  colluded  with  M/s  Indian  Cola  Suppliers  to  cause  loss  of  Rs.26,00,000/- to the Govt. by presenting  weak  case  before  the  court  in  order  to  cause  benefit  to  the  contractor.   The  aforesaid  Act  is  violation  of  para  9.01,  9.02 and 9.03 of financial handbook and  para  3  of  U.P.  Govt.  Servant  Conduct  Rules 1956.”    

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24. A bare perusal of the aforesaid charges shows that the  

three  charges  were  based  on  official  documents/official  

communications.  We  have  earlier  noticed  the  relentless  

efforts  made  by  the  respondent  to  secure  copies  of  the  

documents, which was sought to be relied upon, to prove the  

charges.  These were denied by the department in flagrant  

disregard of the mandate of Rule 7 sub  rule 5. Therefore the  

inquiry proceedings are clearly vitiated having been held in  

breach of the mandatory sub rule (5) of Rule 7 of the 1999  

Rules.  

25. The first inquiry report is vitiated also on the ground  

that  the  inquiry  officers  failed  to  fix  any  date  for  the  

appearance of the respondent to answer the charges. Rule  

7(x) clearly provides as under:

“(x)  Where  the  charged  Government  servant does not appear on the date fixed in the  inquiry or at any stage of the proceeding inspite  of  the  service  of  the  notice  on  him or  having  knowledge of the date, the Inquiry Officer shall  proceed with  the  inquiry  ex  parte.   In  such a  case  the  Inquiry  Officer  shall  record  the  statement of witnesses mentioned in the charge- sheet  in  absence  of  the  charged  Government  servant.”

26. A bare perusal of the aforesaid sub-Rule shows that  

when the respondent had failed to submit the explanation to  

the charge sheet it was incumbent upon the inquiry officer to  

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fix a date for his appearance in the inquiry.  It is only in a  

case when the Government servant despite notice of the date  

fixed failed to appear that  the enquiry officer can proceed  

with the inquiry ex parte.  Even in such circumstances it is  

incumbent on the enquiry officer to record the statement of  

witnesses  mentioned  in  the  charge  sheet.   Since  the  

Government  servant  is  absent,  he  would  clearly  lose  the  

benefit  of  cross  examination  of  the  witnesses.   But  

nonetheless in order to establish the charges the department  

is  required  to  produce  the  necessary  evidence  before  the  

enquiry officer.  This is so as to avoid the charge that the  

enquiry officer has acted as a prosecutor as well as a judge.  

Enquiry officer acting in a quasi judicial authority is in the  

position of an independent adjudicator.  He is not supposed  

to  be  a  representative  of  the  department/disciplinary  

authority/Government.   His  function  is  to  examine  the  

evidence presented by the department, even in the absence  

of the delinquent official to see as to whether the unrebutted  

evidence is sufficient to hold that the charges are proved.  In  

the  present  case  the  aforesaid  procedure  has  not  been  

observed.  Since  no  oral  evidence  has  been  examined  the  

documents have not been proved, and could not have been  

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taken into consideration to conclude that the charges have  

been proved against the respondents.   

27. Apart from the above by virtue of Article 311(2) of the  

Constitution  of  India  the  departmental  inquiry  had  to  be  

conducted in accordance with rules of natural justice.  It is a  

basic  requirement  of  rules  of  natural  justice  that  an  

employee be given a reasonable opportunity of being heard  

in  any proceeding which may culminate  in  a  punishment  

being imposed on the employee.  

28. When a department enquiry is conducted against the  

Government  servant  it  cannot  be  treated  as  a  casual  

exercise.  The enquiry proceedings also cannot be conducted  

with a closed mind.  The enquiry officer has to be wholly  

unbiased.   The rules of  natural  justice  are required to be  

observed  to  ensure  not  only  that  justice  is  done  but  is  

manifestly seen to be done.  The object of rules of natural  

justice  is  to  ensure  that  a  government  servant  is  treated  

fairly in proceedings which may culminate in imposition of  

punishment  including  dismissal/removal  from service.   In  

the case of Shaughnessy v. United States, 345 US 206 (1953)   

(Jackson J), a judge of the United States Supreme Court has  

said  “procedural  fairness  and  regularity  are  of  the  

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indispensable  essence  of  liberty.   Severe  substantive  laws  

can be endured if they are fairly and impartially applied.”

29. The affect of non disclosure of relevant documents has  

been stated in Judicial Review of Administrative Action by De  

Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows:  

“If  relevant  evidential  material  is  not  disclosed  at  all  to  a  party  who  is  potentially  prejudiced by it, there is prima facie unfairness,  irrespective of whether the material in question  arose before, during or after the hearing.  This  proposition can be illustrated by a large number  of modern cases involving the use of undisclosed  reports  by  administrative  tribunals  and  other  adjudicating bodies.  If the deciding body is or  has  the  trappings  of  a  judicial  tribunal  and  receives or appears to receive evidence  ex parte  which is not  fully disclosed, or holds  ex parte  inspections  during  the  course  or  after  the  conclusion of  the hearing,  the  case for  setting  the decision aside is obviously very strong; the  maxim that justice must be seen to be done can  readily be invoked.”

30. In our opinion the aforesaid maxim is fully applicable  

in the facts and circumstances of this case.

31. As  noticed  earlier  in  the  present  case  not  only  the  

respondent has been denied access to documents sought to  

be  relied  upon against  him,  but  he  has  been  condemned  

unheard  as  the  enquiry  officer  failed  to  fix  any  date  for  

conduct of the enquiry.  In other words, not a single witness  

has been examined in support of the charges levelled against  

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the  respondent.   The  High  Court,  therefore,  has  rightly  

observed that the entire proceedings are vitiated having been  

conducted in complete violation of principles natural justice  

and total disregard of fair play. The respondent never had  

any opportunity at any stage of the proceedings to offer an  

explanation  against  the  allegations  made  in  the  charge  

sheet.

32. This Court in the case of Kashinath  Dikshita vs. Union  

of  India,  (1986)  3  SCC  page  229,  had  clearly  stated  the  

rationale  for  the  rule  requiring  supply  of  copies  of  the  

documents, sought to be relied upon by the authorities to  

prove the charges levelled against a Government servant.  In  

that case the enquiry proceedings had been challenged on  

the  ground  that  non  supply  of  the  statements  of  the  

witnesses and copies of the documents had resulted in the  

breach of rules of natural justice. The appellant therein had  

requested for supply of the copies of the documents as well  

as the statements of the witnesses at a preliminary enquiry.  

The  request  made  by  the  appellant  was  in  terms  turned  

down  by  the  disciplinary  authority.  In  considering  the  

importance  of  access  to  documents  in  statements  of  

witnesses to meet the charges in an effective manner this  

Court observed as follows:    

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“When  a  government  servant  is  facing  a  disciplinary  proceeding,  he  is  entitled  to  be  afforded  a  reasonable  opportunity  to  meet  the  charges against him in an effective manner. And  no  one  facing  a  departmental  enquiry  can  effectively meet the charges unless the copies of  the  relevant  statements  and  documents  to  be  used against him are made available to him. In  the  absence  of  such  copies,  how  can  the  concerned  employee  prepare  his  defence,  cross- examine  the  witnesses,  and  point  out  the  inconsistencies  with  a  view  to  show  that  the  allegations  are  incredible?  It  is  difficult  to  comprehend  why  the  disciplinary  authority  assumed an intransigent posture and refused to  furnish  the  copies  notwithstanding  the  specific  request  made  by  the  appellant  in  this  behalf.  Perhaps  the  disciplinary  authority  made  it  a  prestige  issue.  If  only  the  disciplinary  authority  had asked itself the question: “What is the harm  in  making  available  the  material?”  and weighed  the  pros  and  cons,  the  disciplinary  authority  could not reasonably have adopted such a rigid  and adamant attitude. On the one hand there was  the  risk  of  the  time  and  effort  invested  in  the  departmental  enquiry being wasted if  the courts  came  to  the  conclusion  that  failure  to  supply  these materials would be tantamount to denial of  reasonable opportunity to the appellant to defend  himself.  On the other hand by making available  the copies of the documents and statements the  disciplinary authority was not running any risk.  There was nothing confidential or privileged in it.”  

                    33. On  an  examination  of  the  facts  in  that  case,  the  

submission on the behalf of the authority that no prejudice  

had  been caused  to  the  appellant,  was  rejected,  with  the  

following observations:   

“Be that as it may, even without going into minute  details it is evident that the appellant was entitled  to have an access to the documents and statements  

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throughout  the  course  of  the  inquiry.  He  would  have  needed  these  documents  and statements  in  order to cross-examine the 38 witnesses who were  produced  at  the  inquiry  to  establish  the  charges  against him. So also at the time of arguments, he  would have needed the copies of the documents. So  also  he  would  have  needed  the  copies  of  the  documents  to  enable  him  to  effectively  cross- examine  the  witnesses  with  reference  to  the  contents  of  the  documents.  It  is  obvious  that  he  could not have done so if copies had not been made  available  to  him.  Taking  an  overall  view  of  the  matter  we  have  no  doubt  in  our  mind  that  the  appellant has been denied a reasonable opportunity  of exonerating himself.”

34. We are  of  the  considered opinion that  the  aforesaid  

observations  are  fully  applicable  in  the  facts  and  

circumstances  of  this  case.  Non-disclosure  of  documents  

having  a  potential  to  cause  prejudice  to  a  government  

servant in the enquiry proceedings would clearly be denial of  

a reasonable opportunity to submit a plausible and effective  

rebuttal  to  the  charges  being  enquired  into  against  the  

government servant.  

35. The aforesaid proposition of law has been reiterated in  

the case of Trilok Nath vs. Union of India 1967 SLR 759 (SC)  

wherein  it  was  held  that  non–supply  of  the  documents  

amounted to denial of reasonable opportunity. It was held as  

follows:

“Had he decided to do so, the document would  have  been  useful  to  the  appellant  for  cross- examining  the  witnesses  who  deposed  against  

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him. Again had the copies of the documents been  furnished  to  the  appellant  he  might,  after  perusing them, have exercised his right under the  rule  and  asked  for  an  oral  inquiry  to  be  held.  Therefore,  in our view the failure of  the Inquiry  Officer to furnish the appellant with copies of the  documents such as the FIR and the statements  recorded  at  Shidipura  house  and  during  the  investigation  must  be  held  to  have  caused  prejudice to the appellant in making his defence  at the inquiry.”

36. The  proposition  of  law  that  a  government  employee  

facing a department  enquiry  is  entitled  to all  the relevant  

statement, documents and other materials to enable him to  

have  a  reasonable  opportunity  to  defend  himself  in  the  

department  enquiry  against  the  charges  is  too  well  

established to need any further reiteration.    Nevertheless  

given the facts of this case we may re-emphasise the law as  

stated  by  this  Court   in  the  case  of  State  of  Punjab  vs.  

Bhagat Ram (1975) 1 SCC 155:

 “The State contended that the respondent was  not  entitled  to  get  copies  of  statements.  The  reasoning of the State was that the respondent was  given  the  opportunity  to  cross-examine  the  witnesses  and  during  the  cross-examination  the  respondent  would  have  the  opportunity  of  confronting the witnesses with the statements. It is  contended  that  the  synopsis  was  adequate  to  acquaint  the  respondent  with  the  gist  of  the  evidence.

  The  meaning  of  a  reasonable  opportunity  of  showing  cause  against  the  action proposed to  be  taken is that the government servant is afforded a  reasonable  opportunity  to  defend  himself  against  the  charges  on  which  inquiry  is  held.  The  

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government servant should be given an opportunity  to deny his guilt  and establish his innocence. He  can do so when he is told what the charges against  him  are.  He  can  do  so  by  cross-examining  the  witnesses  produced  against  him.  The  object  of  supplying  statements  is  that  the  government  servant  will  be  able  to  refer  to  the  previous  statements  of  the  witnesses  proposed  to  be  examined against the government servant.  Unless  the statements are given to the government servant  he will not be able to have an effective and useful  cross-examination.

   It is unjust and unfair to deny the government  servant copies of statements of witnesses examined  during investigation and produced at the inquiry in  support  of  the  charges  levelled  against  the  government servant. A synopsis does not satisfy the  requirements  of  giving  the  government  servant  a  reasonable  opportunity  of  showing  cause  against  the action proposed to be taken.”

37. We  may  also  notice  here  that  the  counsel  for  the  

appellant sought to argue that respondent had even failed to  

give reply to the show cause notice,  issued under Rule 9.  

The removal order, according to him, was therefore justified.  

We are unable to accept the aforesaid submission.  The first  

enquiry  report  dated  3.8.2001,  is  clearly  vitiated,  for  the  

reasons stated earlier.  The second enquiry report can not  

legally be termed as an enquiry report as it is a reiteration of  

the earlier,  enquiry report.   Asking the respondent to give  

reply to the enquiry report without supply of the documents  

is to add insult to injury. In our opinion the appellants have  

deliberately misconstrued the directions issued by the High  

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Court in Writ Petition 937/2003.  In terms of the aforesaid  

order the respondents was required to submit a reply to the  

charge sheet upon supply of the necessary document by the  

appellant.   It  is  for  this  reason  that  the  High  Court  

subsequently while passing an interim order on 7.6.2004 in  

Writ Petition No. 793/2004 directed the appellant to ensure  

compliance of  the order  passed by the Division Bench on  

23.7.2003.  In our opinion the actions of the enquiry officers  

in  preparing  the  reports  ex-parte  without  supplying  the  

relevant documents has resulted in miscarriage of justice to  

the  respondent.   The  conclusion  is  irresistible  that  the  

respondent  has  been  denied  a  reasonable  opportunity  to  

defend himself in the enquiry proceedings.       

38. In our opinion, the appellants have miserably failed to  

give any reasonable explanation as to why the documents  

have  not  been  supplied  to  the  respondent.   The  Division  

Bench of  the High Court,  therefore,  very appropriately  set  

aside the order of removal.    

39. Taking into consideration the facts and circumstances  

of  this  case  we  have  no  hesitation  in  coming  to  the  

conclusion  that  the  respondent  had  been  denied  a  

reasonable opportunity to defend himself the inquiry.  We,  

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therefore, have no reason to interfere with the judgment of  

the High Court.

40. Appeal is dismissed.   

..……….……………………….J                     (V.S. SIRPURKAR)

                  ..…………………………………J

                           (SURINDER SINGH NIJJAR)

NEW DELHI, FEBRUARY 02, 2010.

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