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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: SHATRUGHAN LAL & ANR.

DATE OF JUDGMENT:       30/07/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. SAGHIR AHMAD, J.      The respondent  who was a Lekhpal in the service of the State Government, was dismissed from service after a regular departmental inquiry.  The order of dismissal was challenged before the  U.P. Public  Services  Tribunal  which,  by  its judgment dated  13.3.81, allowed the claim petition with the findings that the departmental proceedings conducted against the respondent  as also  the order dated 28.2.77 by which he was removed from service were illegal and void. The State of U.P. then  filed a writ petition in the High Court which was dismissed summarily on 4.2.82.      We have  heard learned  counsel for  the  parties.  The Tribunal has  found as   a fact that copies of the documents which were  proposed in  the charge-sheet  to be produced in the department  proceedings as  proof in support of articles of charges  were not  supplied  to  the  respondent.    This finding was  based on  the own admission of the appellant in the written  statement that  the  copies  of  the  documents mentioned in  the charge-sheet  were  not  supplied  to  the respondent which  could be inspected by him at any time. The Tribunal further  found that  the copies  of  the  statement recorded during  the preliminary  inquiry on  the  basis  of which the  charges  were  subsequently  framed  against  the respondent were  also not  supplied to him. It was, on these two grounds  that it  was held  by  the  Tribunal  that  the inquiry proceedings were bad in law.      These findings  are assailed  before us  by the counsel for the State of U.P.      Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearting. this opportunity has to be an  effective opportunity  and not  a mere  pretence.  In departmental proceedings  where charge-sheet  is issued  and the documents which are proposed to be utilised against that person are  indicated in the charge sheet but copies thereof are not  supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him.  (see: Chandrama  Tewari vs.  Union  of  India  1987

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(Supp.) SCC  518 =  AIR 1988  Sc 177; Kashinath Dikshita vs. Union of  India &  Ors. 1986 (3) SCC 229 = AIR 1986 SC 2118; State of  Uttar Pradesh  vs. Mohd. Sharif (1982) 2 SCC 376 = AIR 1982 SC 937).      In High  Court of Punjab & Haryana vs. Amrik Singh 1995 (Supp.) 1  SCC 321,  it was  indicated that  the  delinquent officer must  be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer  must be  given an  opportunity to  inspect the same, or  else, the  principles of  natural justice would be violated.      Preliminary inquiry  which is  conducted invariably  on the back  of the  delinquent employee may, often, constitute the whole  basis of  the charge-sheet.  Before  a person is, therefore, called  upon to  submit his  reply to  the charge sheet, he  must, on a request made by him in that behalf, be supplied the  copies of the statements of witnesses recorded during  the   preliminary  enquiry   particularly  if  those witnesses are  proposed to  be examined  at the departmental trial. This  principle was  reiterated in Kashinath Dikshita vs. Union  of India & Ors. (1986) 3 SCC 229 (supra), wherein it was  also laid  down that  this lapse  would vitiate  the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those document in his defence.      Applying the  above principles  to the instant case, it will be  seen that  the copies  of the  documents which were indicated in  the charge sheet to be relied upon as proof in support of  articles of  charges were  not supplied  to  the respondent nor  was any  offer made  to him to inspect those documents.      Learned  counsel   appearing  for   the  appellant  has contended that the opportunity to inspect the documents was, as a matter of fact, provided to him as set out in Paragraph 10 of  the written  statement filed  before the Tribunal, in which, it was, inter alia, indicated as under:      "The  petitioner  was  required  to      reply to the charge within a period      of 15 days from the date of receipt      of charge  sheet and  not from  the      date of  order as  alleged  in  the      petition.   it is  no doubt correct      that the  copies of  the  documents      mentioned  in   the  charge   sheet      purporting   to    substantiate   a      particular   charge,    were    not      supplied to  the petitioner because      it  was   not  necessary   and  the      petitioner  had   every  right   to      inspect them  at any  time. It  is,      therefore, wrong  to say  that  the      petitioner was  greatly handicapped      for  want  of  the  copies  of  the      documents mentioned above."      This paragraph   of  the written  statement contains an admission of  the appellant  that copies  of  the  documents specified in  the charge  sheet were  not  supplied  to  the respondent as the respondent had every right to inspect them at any time.  This assertion clearly indicates that although it is  admitted that  the copies  of the  documents were not supplied to  the respondent and although he had the right to inspect those  documents, neither  were the  copies given to him  nor   were  the  records  made  available  to  him  for inspection. If  the appellant  did not intend to give copies

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of the  documents to  the respondent,  it should  have  been indicated to  the respondent  in writing that he may inspect those documents.  Merely saying  that the  respondent  could have inspected  the documents  at any time is not enough. he has to  be informed  that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him.      It has  also been  found that  during the course of the preliminary enquiry,  a number  of witnesses  were  examined against the  respondent in  his absence,  and rightly so, as the  delinquents  are  not  associated  in  the  preliminary enquiry, and  thereafter the  charge sheet was drawn up. The copies  of   those  statements,  though  asked  for  by  the respondent, were  not supplied  to him.  Since there  was  a failure on the part of the appellant in this regard too, the principles  of   natural  justice   were  violated  and  the respondent was  not afforded  an  effective  opportunity  of hearing, particularly  as the  appellant failed to establish that non-supply  of the copies of statements recorded during preliminary enquiry  had not  caused any  prejudice  to  the respondent in defending himself.      For the  reasons stated above, the appeal has no merits and i;,  therefore, dismissed,  but without  any order as to costs.