UNION OF INDIA v. ALOK KUMAR

Citation: [2010] 5 S.C.R. 35

Court: Supreme Court of India

Bench: AFTAB ALAM, SWATANTER KUMAR

Case summary

UNION OF INDIA v. ALOK KUMAR.pdf

Judgment text

[2010) 5 S. C. R. 35 UNION OF INDIA v. ALOK KUMAR (Civil Appeal NO. 3369 of 2010 etc. ) APRIL 16, 2010 [AFTAB ALAM AND SWATANTER KUMAR, JJ. ] Railway Servants (Discipline and Appeal) Rules, 1968: r. 9(2) - Inquiry under the Rules - Retired officers of the Department appointed as 'inquiry officer' - Circulars issued by Government permitting such appointment - Appointment challenged being violative of the rules and Public Servants (Inquiries) Act - Held: Recourse to the provisions of the Act not applicable in the facts of the case - Appointment of retir~d officers as 'inquiry officer' is permissible - Expression 'other authority' ulr. 9(2) does not mean a person in service alone - The Rule does not exclude appointment of retired employees as other authority- Application of principle of exclusion cannot be inferred in absence of specific language in the Rule - The circular is not in conflict with r.

9(2) - It is rather supplementing the Rule - The appointment was also done in public interest - The practice of such appointment has been adopted for a considerable time and there is no bar to such practice - The delinquents having accepted it, cannot challenge it - Delinquents have also not been able to show that they suffered serious prejudice because of appointment of retired officers - Service Law - Departmental Proceedings - Public Servants (Inquiries) Act, 1850. rr. 9(2) and (6) and Schedule 3 - Interpretation of r. 9(2) - Appointment of retired officers as inquiry officers under the Rules, challenged as violative of spirit of the Rule - Held: The expression 'other authority' is intended to cover a vast field, it should not be given a narrow meaning - The provision provides a discretion in matter of appointment of 'inquiry officer' ...

; The provision vesting discretion cannot be interpreted in a manner which could take away the discretionary power - Interpretation should be such as to further the object of such rule - A statute should be examined in its entirety arid not merely looking at a provision in isolation 8 - Principle of ejusdem generis is attracted where the words preceding the general words pertains to class genus and not heterogeneous collection of items - Principle of ejusdem generis not applicable to r. 9(2) -Rule of contextual interpretation is applicable to the provision in question interpretation of Statutes.

Administrative Law - Natural justice - Non-furnishing of documents (issued by eve) to the delinquent - Wheth~r caused prejudice to delinquent - Held: In absence of proof that eve advice was taken into consideration in, departmental proceedings or that there is any rule providing that implementation of such advice is mandatory, prejudice against the delinquent cannot be presumed - Onus is on the delinquent to· show that non-furnishing of the document resulted in de facto prejudice - Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion - It is not permissible to set aside departmental inquiries merely on the basis of apprehended prejudice -On facts, delinquent failed to show any de facto prejudice on account of non-furnishing of the document - Service Law - Departmental Proceedings. Maxim - ejusdem generis - Applicability of.

Doctrines I Principles: Principle of necessary implication - Applicability of Principle of exclusion - Applicability of Words and Phrases: 'authority' - Meaning of The question for consideration in ttte appeals was whether under the relevant Rules and provisions of Public Servants (Inquiries) Act, 1850, the Railway Authorities have the jurisdiction to appoint a retired employee of the Department as 'Inquiry Officer' within the ambit of Rule 9(2) of the Railway Servants (Discipline & Appeal) Rules, 1968. In one of the appeals, an additional issue arose as to V'! fhether non-furnishing of the Central Vigilance Commission advice/notes, to the delinquent, resulted in prejudice to him. Allowing the appeals, the Court HELD: 1. 1. The Departmental proceedings against the respondent was rE! stricted to the applicability of Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968.

Thus, recourse to the provisions of the Public Servants (Inquiries) Act, 1850 for the purposes of interpretation or deciding the controvercies in issue was entirely unwarranted in the facts and circumstances of the case. [Para 18) [57-A-B] 1. 2. The language of Rule 9(6) shows that there is a discretion vested in the disciplinary authority, enabling it to hold the inquiry itself or get the truth of imputations inquired by any 'other authority' in terms of the Rule. It will be appropriate to read Rule 9(1) and 9(2) together but cautiously. [Para 20) [59-E-F] 1. 3. The language of Rule 9 demonstrates that the Rules and the Act are neither inter-dependent nor convey a legislative intent that a departmental inquiry has to be held under both, collectively or at the discretion of the disciplinary authority. The provisions of the Act are applicable to a very limited class of persons i. e.

, the officers who are removable or liable to be dismissed from service only with the sanction of the Government. The Rules are applicable to non-gazetted officers and officials of the Department of Railways except Grade-A officers specified under Schedule 3 of the Rules. Thus, under the scheme of the Rules and the Act and particularly, keeping in view the preamble of the Act, it is not correct to say that absolute discretion is vested in the authorities concerned to subject a person to departmental inquiries in terms of the Rules or the Act. They have to exercise the power in accordance with the provisions of the relevant statute. Such an approach is amply indicated even in the language of Rule 9(2). [Para 20) [59-G-H; 60- A-D] 1. 4. The Rules require the disciplinary authority to form an opinion that the grounds for inquiry into the truth of imputations of misconduct or misbehaviour against the railway servant exists. Further, that they have enquired into the matter.

Then, such inquiry may be conducted by the disciplinary authority itself or it may appoint under the Rules a Board of Inquiry or other authority to enquire into the truth thereof. Formation of such an opinion is a condition precedent for the disciplinary authority, whether it intends to conduct the inquiry under the Rules or under the Act as the case may be. The expression "as the case may be" clearly suggests that law which will control such departmental inquiry would depend upon the class of officers/officials whose misconduct or misbehaviour subject them to such inquiry. If the employee is covered under the Act, the disciplinary authority shall have to appoint an inquiry officer and proceed with the inquiry under the provisions of the Act, whereas if he is covered under the Rules, the procedure prescribed under the Rules will have to be followed. [Para 20] [60-0-G] 1. 5.

Other important feature in the language of Rule 9(2) is appoint under this Rule a Board of Inquiry or other Authority. The expression 'other authority' has neither been explained nor defined under the Rules. In terms of Rule 2(1 )(2), the words which have not been defined· under these Rules shall be deemed to have been assigned the same meaning as assigned under the Railway Act, 1890. Even the Railway Act does not define the term 'authority' though this expression has been used in conjunction with other words in the Rules as well as the Act. In absence of any specific definition or meaning, the court has to rely upon understanding of this expression in common parlance. [Para 21-22) [60-G-H; 61- A-8) 1. 6. In common parlance, the word 'authority' is understood to be power to exercise and perform certain duties or functions in accordance with law. Authority may vest in an individual or a person by itself or even as a delegatee.

It is the right to exercise power or permission to exercise power. Such permission or right could be vested in an individual or a body. It can also be in conferment of power by one person to another. This expression has been used differently in different statutes and can be given a different meaning or connotation depending upon the context in which it is used. The purpose and object of using such expression should be understood from the provisions of the relevant law and the purpose sought to be achieved. [Para 22) [61-C-F] Far/ex Free Dictionary; Oxford Dictionary; Law Lexicon, 2nd Edition, 1997 pg. 171, referred to 1. 7. The . expression 'other authority' appearing in Rule 9(2) is intended to cover a vast field and there is no indication of the mind of the framers that the expression must be given a restricted or a narrow meaning.

It is possible that where the authority is vested in a person or a body as a result of delegation, then delegatee of such authority has to work strictly within the field delegated. If it works beyond the scope of delegation, in that event it will be beyond the authority and may even, in given circumstances vitiate the action. [Para 24] [64- B-D) 1. 8. There is an element of discretion vested in the 8 competent authority to appoint 'other authority' for the purposes of conducting a departmental inquiry. It is a settled principle of interpretation that exclusion must either be specifically provided or the language of the Rule should be such that it definitely follows by necessary implication. The words of the Rule, therefore, should be explicit or the intent should be irresistibly expressed for exclusion. If it was so intended, the framers of the Rule could simply use the expression like 'public servant in office' or 'an authority in office'.

Absence of such specific language exhibits the mind of the framers that they never intended to restrict the scope of 'other authority' by limiting it to the serving officers/officials. The principle of necessary implication further requires that the exclusion should be an irresistible conclusion and should also be in conformity with the purpose and object of the rule. [Para 26) [65-A-D] 1. 9. It is not correct to say that the framers of the Rules have excluded appointment of former employees of Railway Department as other authority (inquiry officer) under the provisions u/r. 9(2). An exclusion clause should be reflected in clear, unambiguous, explicit and specific terms or language, as in the clauses excluding the jurisdiction of the court the framers of the law apply specific language. In some cases, as it may be, such exclusion could be read with reference to irresistible implicit exclusion.

Application of principle of exclusion can hardly be inferred in absence of specific language. [Para 27) [65-E-F] New Moga Transporl Co. v. United, India Insurance Co. Ltd, AIR 2004 SC 2154, referred to. 1. 10. The inquiry officer appointed by the disciplinary authority is a delegatee and has to work within the limited authority so delegated to him. The charges and article of 8 charges and imputations are s_e. rved by the disciplinary/ competent authority. The inquiry report is submitted again to the competent authority which is expected to apply its mind to the entire record and then decide whether any punishment should be imposed upon the delinquent officer or not. Thus, all substantive functions are performed by the disciplinary or the specified authority itself. It is only an interregnum inquiry. It is conducted by the delegatee of the said authority.

That being the purpose and specially keeping in mind the language of Rule 9(2), it cannot be said that 'other authority' has to be a person in service alone. [Para 28) [66-B-E] Ravi Malik v. National Film Development Corporation Ltd. and Ors. 2004 (13) SCC 427, distinguished. 1. 11. The Rule has not specified any qualifications or pre-requisites which need to be satisfied before a person can be appointed as an inquiry officer. It has been left to the discretion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simplicitor. [Para 29) [67-F-G] 1. 12.

The Schedule specifies the powers of the respective authorities to take disciplinary action against the delinquent officer, either in certain terms or even by interpretation, it does not suggest which class of persons should or should not be appointed as inquiry officers. On the contrary, Rule 9(2) specifically empowers the Disciplinary Authority to inquire into the matter itself or appoint another authority to conduct the inquiry. In other words, the functions of the Inquiry Officer are that of a delegating nature and this delegation ex facie, is limited delegation. An Inquiry Officer is not even entitled to suggest the punishment unless the Rule so requires specifically, which is not the case here. It is a settled rule that the provisions of an Act/Rules should be examined in their entirety along with the scheme before a particular meaning can be given to an expression or sentence used in a particular language.

Thus the Rules must be examined in their entirety along with the conditions of the Schedule and not merely look at Rule 9(2) in isolation. [Para 32] [70-F-H; 71-A-B] 1. 13. It is not correct to say that in view of the language of Rule 9(2), the expression "other authority" would have to be read ejusdem generis to the earlier part of Rule 9(2) and that they must take colour from the earlier part of the Rule. The rule of ejusdem generis is applied where the words or language of which in a Section is in continuation and where the general words are followed by specific words that relates to a specific class or category. The maxim ejusdem generis is attracted where the words preceding the general word pertains to class genus and not a heterogeneous collection of items. The language of Rule 9(2), on its plain reading shows that the words are disjunctive and therefore, this principle of interpretation would be hardly applicable to the facts of the present case.

[Paras 34, 35, 36 and 37] (71-E-F; 72-B- C, G; 73-A] Commissioner of Income Tax, Udaipur, Rajasthan vs. Mcdowell and Company Limited 2009 (10) SCC 755, distinguished. 1. 14. It will be useful to apply the rule of contextual interpretation to the provisions of Rule 9. It would not be permissible to import any meaning or make additions to the plain and simple language of Rule 9(2) in relation to "other authority. " The rule of contextual interpretation requires that the court should examine every word of statute in its context, while keeping in mind the preamble of the statute, other provisions thereof, pari material s statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries.

When the rules and regulations have been framed dealing with different aspects of the service of the employees, the courts would attempt to make a harmonious construction and try to save the provision, not strike it down rendering the provision ineffective. The Court would normally adopt an interpr~tation which is in line with the purpose of such regulations. The rule of contextual interpretation can be 0 purposefully applied to the language of Rule 9(2). The legislative background and the object of both the Rules and the Act is not indicative of any implied bar in appointment of former employees as inquiry officers. [Para 38) [73-E-H; 74-A-B] Gudur Kishan Rao v. Sutirtha Bhattachaarya (1998) 4 SCC 189; Nirmal Chandra Bhattacharjee v. Union of India 1991 (Supp (2) SCC 363; Central Bank of India v. State of Kera/a (2009) 4 SCC 94, relied on. Housing Board of Haryana v. Haryana Housing Board Employees Union (1996) 1 SCC 95, referred to. 1. 15.

There is no conflict, much less the contradiction between the language of Rule 9(2) and the circular of 1998 issued by the appellants which contemplated preparation of a panel of former officers/ · employees of the railway department, who can be appointed as inquiry officers to conduct the departmental inquiry as the disciplinary/competent authority. The circular only aids Rule 9(2) further while saying that in the interest of the administration and in consonance with the Rules, the former/retired officers of the railway department who satisfy the eligibility criteria can be appointed as inquiry officer and submit their report to the disciplinary authority· in accordance with law. It is clear that th·~ circular issued is only supplementing Rule 9(2) and is in no way in conflict with the language or spirit of Rule 9(2).

WheP a circular is issued for the purposes of supplementing the removal of ambiguity in the Rule or to achieve the purpose of the Rule more effectively, it can hardly be said that there is a conflict between the two. [Paras. 30 and 31) [69-B-D; F-G) 1. 16. While examining the provisions of vesting of discretion, it cannot be said that they should be . interpreted . in a manner which would take away the discretion cont~mplated under the Rule. Rather it would be appropriate to adopt an interpretation which would further the object of such rule. Once there is no conflict, then the Rule and the circular should be harmoniously read. [Para 31) [70-A-B-E] Union Qf India and Ors. v. Virpal Singh Chauhan and Ors. 1995 (6) sec 684, referred to. 1. 17. There is no challenge in any of the applications filed before the Tribunal to any of the circulars.

By passage of time and practice the competent authorities and even the delinquent officers in disciplinary cases have given effect to these circulars and they were. treated to be good in law. It is only in the arguments addressed before this Court, where it is suggested that these circulars supersede or are in cor. :lict with the Rules. [Para 40) [74-E-G] 1. 18. It is not opposed to any canons of service jurisprudence that a practice cannot adopt the status of an instruction, provided it is in consonance with law and has been followed for a considerable time. This concept is not an absolute proposition of law but can be applied depending on the facts and circumstances of a given case. [Para 41] [74-G-I-! ; 75-A] Confederation of Ex-Service Man Associations and Ors. v. Union of India and Ors. (2006) 8 sec 699, relied on. 1. 19.

A practice adopted for a considerable time, which is not violative of the Constitution or otherwise bad in law or against public policy can be termed good in law as well. What has been part of-the general functioning of the authority concerned can safely be adopted as good practice, particularly, when such practices are clarificatory in nature and have been consistently implemented by the concerned authority, unless it is in conflict with the statutory provisions or principal document. A practice which is uniformly applied and is in the larger public interest may introduce an element of fairness. A good practice of the past can even provide good guidance for future. This accepted principle can safely be applied to a case where the need so arises, keeping in view the facts of that case. [Para 42] [75-E-H; 76-A] Deputy Commissioner of Police and Ors. vs. Mohd. Khaja Ali 2000 (2) SLR 49, relied on. 1. 20.

The practice- of appointing former employees had been implemented for quite some time in the Department. This practice is not opposed to any statutory provision or even public policy. To bar such a practice, there has to be a specific prohibition under the statutory provision~. [Para 43] [76-8-C] . 1. 21. In the issuance of the circulars by the Railways, larger public interest is served. The background stated by the appellants necessitating the issuance of these circulars, clearly stated that large number of cases of [2010] 5 S. C. R. departmental inquiries are pending and have not attained finality, primarily for the non-availability of the inquiry officers~ Even that consideration would tilt the balance, in achieving larger public purpose and interest, rather than to take an approach which would add to the misery of the Railway officials who are facing departmental inquiries. [Para 44] [76-C-E] 1. 22.

In the present case even the respondents have participated in the entire inquiry and received the order of punishment without any protest. They, in fact, have admitted to the established practice of appointment of former raflway employees as inquiry officers. [Para 45] [76-F-G] . . 2. 1. There is nothing on record to show that the alleged CVC notes have actually been taken into consideration and that the same have affected the mind of the disciplinary authority while considering the defence of the delinquent officer and imposing punishment upon him. Unless . such notes were actually considered and had some prejudicial effect to the interest of the delinquent officer, it will not be necessary for the Court to interfere in the departmental inquiry proceedings on that ground. All these ingredients are not satisfied in the records. It is a settled rule of departmental proceedings that, it is for the delinquent officer to specifically raise such an issue .

and discharge the onus of prejudice. [Paras 49 and 52] [78-E; 79-D-F] Sunil Kumar Banerjee v. State of West Bengal and Ors. 1980 (3) SCC 304; State Bank of India and Ors. v. D. C. Aggarwal and Anr. 1993 (1) SCC 13, referred to. 2. 2. Unless the Rules so require, advice of the CVC is not binding. In absence of any specific rule that seeking advice and implementing thereof is mandatory, it will not be just and proper to presume that there is prejudice to the concerned officer. Even in the cases where the action is i:aken without consulting the Vigilance Commission, it necessarily will. not vitiate the order of removal passed after inquiry by the departmental authority. [Para 54] [81-C-E] 8 State of A. P. and Anr. v. Dr. Rahimuddin Kamal 1997 (3) SCC 505; Deokinandan Prasad v. State of Bihar 1971 (2) sec 330, relied on. 2. 3.

Some element ot prejudice is essential before an order of imposing penalty can be interfered with by the court, particularly when the inquiry otherwise had been conducted in accordance with law and no grievance was raised by the respondent on that behalf except the poifits raised for consideration of the Tribunal. Thus, no statutory rule or regulation has been violated by the 0 appellant nor any eve notes were actually taken into consideration for imposing the punishment upon the respondent. [Para 55] [82-D-F] 2. 4. Earlier, in some of the cases, this Court had taken the view that breach of principle of natural justice was in itself a prejudice and no other 'de facto' prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rt1_le is merely dictatory the element of de facto prejudice needs to be pleaded and shown.

With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of non-mandatory rules or violation of natural justice as it is understood in its common parlance. [Para 57] [83-C-E] S. L. Kapoor v. Jagmohan 1980,(4) SCC 379; KL Tripathi v. State Bank of India (1984) 1 SCC 43; ECIL v. B. Karunakar (1993) 4 SCC 727; Haryana Financial Corporation v. Kai/ash Chandra Ahuja 2008 (9) SCC 31, relied on. A. 2. 5. In a departmental inquiry where. the Department relies upon . a large number of documents; ·majorityrof which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some · copies of formal documents had not been furnished to the delinquent.

In that event the onus is upon the employee to show that non-furnishing of these formal · '\ documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof. In the light of the peculiar facts and circumstances of the present q case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired Railway officers as inquiry officers. The respondents have not satisfied this test of law. [Para 57] [83-E-G; 84-A-B] · 2. 6. The well established canons controlling the field of bias in service jurisprudence can reasonably extend to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates statutory violations.

It will not be permissible to set aside. the departmental inquiries in any of these classes merely on the basis of apprehended prejudice. [Para 61] [86~E-F] 2. 7. De facto prejudice is ~ne of the essential ingredients to be shown by the delinquent officer before an order· of punishment can be set aside, of course, depending upon the facts and circumstances of a given case. Judicia posteriora sunt in lege fortiori. Prejudice normally would be a matter of fact and a fact must be pleaded and shown by cogent documentation to be true. Once this basic feature lacks, the appellant may not be able to persuade the Court· to interf~re with the departmental inquiry or set aside the orders of punishment. [Para 63] [88-B-D] Case Law Reference 2004 (13) sec 427 distinguished. Para 26 AIR 2004 SC 2154 referred to. Para 27 1995 (6) sec 684 referred to. Para 3u 2009 (10) sec 755 distinguished. P~ra 34 (1998) 4 sec 189 ·relied on. Para 39 ·c (1991) Supp (2) sec 363 relied on.

Para 39 (2009) 4 sec 94 relied on. Para 39 (1996) 1 sec 95 referred to. Para 39 (2006) 8 sec 699 relied on. Para 41 2000 (2) SLR 49 relied on. Para 42 19so (3) sec 304 referred to. Para 51 1993 (1) sec 13 referred to. Para 51 \ 1997 (3) sec 505 relied on. . Para 54 1911 (2) sec 330 relied on. Para 54 1980 (4) sec 379 relied on. Para 58 (1984) 1 sec 43 relied on. Para 59 (1993) 4 sec 121 relied on. Para 60 2008 (9) sec 31 relied on. Para 60 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3369 of 201 o. From the Judgment & Order dated 25. 2. 2008 of the High Court of Lucknow in Writ Petition 252 of 2008. WITH C. A. Nos. 3370, 3372, 3373, 3374, 3375, 3376 of 2010. S. Wasim A. Qadri, Jubair Ahmad Khan, Anand Verma, Minnat Ullah, A. K. Sharma, Ron Bastin for the Appellant. P. P. Khurana, Santosh Kumar, Mushtaq Ahmad, S. Prasad, Ambar Qamaruddin, Manoj Prasad, Satyendra Kashyap, Sadashiv Gupta, Vishal Somany for the Respondent. The Judgment of the Court was delivered by SWATANTER KUMAR, J.

1. Delay condoned in SLP (C) No. 25293 of 2008. 2. Leave granted. 3. This judgment shall dispose of all the above mentioned appeals as common question of law on somewhat similar facts arise in all the appeals for consideration of this Court. 4. The Union of India being aggrieved by the judgment of the High Court of Judicature at Allahabad, Lucknow Bench dated 25th February, 2008 has filed the present appeals under Article 136 of the Constitution of India. The High Court declined to interfere with the Order passed by the Central Administrative Tribunal, Lucknow Bench (hereinafter referred to as 'the Tribunal') wherein the Tribunal, in exercise of its powers under Section 19 of the Central Administrative Tribunal Act had set aside the orders of punishment passed by the Disciplinary Authority and the Appellate Authority. However, the High Court granted liberty to the Discipiinary Authority to conduct the inquiry afresh from the stage of nomination of the inquiry officer. 5.

A simple but question of some significance under service jurisprudence falls for consideration in the present appeals, whether or not under the relevant Rules and provisions of the Act, the Railway Authorities have the jurisdiction to [SWATANTER KUMAR, J. ] appoint a retired employee of the Department as 'Inquiry Officer' wit_hin the ambit of Rule 9(2} of the Railway Servants (Discipline & Appeal} Rules, 1968 (for short referred to as 'the Rules'). 6. The facts necessary for dealing with this batch of 8 appeals can be summarily stated. The respondents in all these appeals are the members in service of the Railway Establishment. Alok Kumar, respondent in SLP (C) No. 25293 of 2008, is a Group-A officer, while in all other appeals the respondents are from clerical cadre of the Railway Department. This is primarily the only distinguishing feature in thefact~ of the present appeals.

The High Court as well as the Tribunal in all these cases recorded the finding that a retired officer of the Railways cannot be appointed as an inquiry officer within the meaning of the provisions of Rule ! :I of the Rules. · 7. Keeping in view the common question of law that has been answered against Union of India, it may not be necessary for us to refer to the facts of each case in detail. Suffice it to notice the facts in some detail in Shri Alok Kumar's case. Shri Alok Kumar, respondent, an officer of the Indian Railway Services of Engineers was appointed as Senior Divisional Engineer and was one of the Members of the Tender Committee as well. It is the case of the appellants before us that some irregularities of the Tender Committee were noticed. 8.

The Competent Authority on 11th September, 2001 thus served a charge sheet upon the delinquent officer under Rule 9 of the Rules, calling upon him to render his explanation with regard to the Article of Charges and imputations stated therein. It was alleged that Shri Alok Kumar, as convener member of the Committee besides the official position he was holding, submitted a brief calling for tenders on the basis of highly inflated estimates with a view to justify award of contract at very high rates. It was also alleged that he did not submit proper information before the Tender Committee and deliberately misled the other members of the Committee. The Tender 52 SUPREMi= COURT REPORTS [2010] 5 S. C. R. , I Committee which met on 1. 3th July, 1999, upon comparing the rates quoted by M/s Rajpal Builders with the e~timated tender value, had found that these were (-) 1. 7% lower than the · estimated rates. ~\ . ' 9.

In short, it was stated that by"misusing his official status 8 he had awarded the contract to the contractor of the Department at high . rates. To this,. the delinquent fifed reply de,nying the Article of Charges. One Shri J. K. Thapar, retired CAP"FOIS, Northern Railways was appointed as an Inquiry . Officer. The inquiry was conducted by him during the year 2001- · 02. The entire file including the Central Vigilance Commission (for. short 'CVC') advice was also placed before the competent authority. The Disciplinary Authority expressed disagreement and issued a Memorandum dated 6th May, 2003 giving a chalice to Shri Alok Kumar for making a representation. The Railway Board vide its letter dated 14. 6. 2004, passed an order imposing punishment upon the respondent of reduction by one stage in the time scale of pay for a period of one year. . 10. Aggrieved by this Order of punishment, the respondent preferred an appeal which came to be decided by the Ministry of Railways.

The Competent Authority rejected the same vide Order dated 18th July, 2005.. Since the respondent could not get any relief, he filed an Original Application No. 458 of 2006 before the Tribunal against· the orders of the Disciplinary Authority and the Appellate Authority. Different points were raised in the application by the respondent, however finally only two issues were raised before the Tribunal Which. were. noticed in paragraph 6 of its judgment as under:- ning of the authority concerned can safely be adopted as good practice, particularly, when such practices are clarificatory in nature and have been consistently implemented by the concerned authority, unless it is in conflict with the statutory provisions or principal document. A practice which is uniformly applied and is in the larger public interest may introduce an element of fairness. A good practice of the past can even provide good guidance for future.

This accepted principle can safely be applied to a case where the need so arises, keeping in view the facts of that case. ]'his view has been taken by different High Courts and one also finds glimpse of the same in a judgment of this Court in the case of Deputy Commissioner of Police & Ors. Vs. Mohd. Khaja Ali (2000 (2) SLR 49). 43. There can be hardly any doubt that the practice of appointing former employees had been implemented for quite some time in the Departm~nt. We are . unable to see how this practice is opposed to any statutory provision or even public policy. To bar such a practice, there has to be a specific prohibition under the statutory provisions, then alone th~ argument raised on behalf of the respondents could have some. merit. 44. We may also notice that in the issuance of the circulars by the Railways, larger public interest is served.

The background stated by the appellants necessitating the issuance of these circulars, clearly stated that large number of cases of departmental inquiries are pending and have not attained finality, primarily for the non-availability of the inquiry officers. Even that consideration would tilt the balance, in achieving larger ·public purpose and interest, rather than to take an approach which would add to the misery of the Railway officials who are facing departmental inquiries. It is a known fact that in most of the inquiries the ~_elinquent is placed either under suspension or faces other adverse consequences: 45. In the present case even the respondents before us have participated in the entire inquiry and received the order of punishment without any protest. They; in fact, have admitted · to the established practice of appointment of former railway employees as inquiry officers. Tbe cumulative result of this discussion is that, it is not possible for this Court to.

hold, in the facts and circumstances of the case, that the "other authority" has to be only a person in service. [SWATANTER KUMAR, J. ] Non-furnishing of advise of Central Vigilance Commission and its consequences 46. In its impugned judgment the Tribunal accepted the contention of the respondents that the CVC's advice/note should have been made available to the delinquent during the stage of inquiry. While referring to another judgment of the Tribunal itself, it concluded that the case was akin to the referred judgment and the notes of the eve should have been furnished and thus set aside the order of punishment. It will be useful to refer to the reason and conclusion recorded by the Tribunal in its order. There are only two paragraphs i. e. , Paragraph Nos. 17 and 18 of the Tribunal's judgment which have been recorded in this regard: "17. We are of the opinion that this case is akin to the two cases mentioned above as far as the non supply of CVC's advise is concerned. 18.

If the advise of the Cenfral Vigil~mce Commission has been considered during the course ofthe disciplinary proceedings. the same should have been supplied to the delinquent official if asked for at appropriate time. In very special cases, such request may not be considered, but in such situations, the competent authority should have recorded the reasons for not supplying such documents. " 47. The High Court has really not dealt with this issue in any further elaboration, except affirming the order of the Tribunal. The High Court mainly considered the arguments founded on the interpretation of Rule 9(2). The reasons recorded by the Tribunal are in no way sufficient to sustain that finding. Before setting aside the impugned orders on that ground, the Tribunal should have concluded in relation to certain facts.

They be : (a} Whether there were any eve notes having a direct bearing on the inquiry in question, (b) Whether such report was actually brought by the delinquent officer, (c) Whether such notes were actually taken into consideration by the disciplinary authority while passing the impugned orders and finally, (d) Whether the delinquent officer has suffered de facto prejudice as a result of non-furnishing of advise. 48. Unfortunately, the findings recorded by the Tribunal are entirely silent on the above material aspects, as is clear from Paragraph Nos. 17 and 18 of its judgment. 49. From the records before us, it appears that the circular issued by the Vigilance D~partment was actually asked for by the delinquent officer in the application filed before the Tribunal and even in the reply filed before the High Court.

It is nowhere stated what was the relevancy of this alleged CVC note, whether it had actually been taken into consideration and, whether it had caused prejudice to the delinquent officer. All these ingredients are not satisfied in the records before us. It is a settled rule of departmental proceedings that, it is for the delinquent officer to specifically raise such an issue and discharge the onus of prejudice. The concept of prejudice, we shall discuss shortly. But for the present, we are only discussing its factual aspect and the law relating thereto. 50. The documents and the circulars issued by the Central Vigilance Commission, Government of India which have been placed on record as Annexure R-3 dated 28th September, 2000 relate to furnishing of information of the eve advice and the purpose sought to be achieved as well as the need of the employee's representation in that regard.

The record is entirely silent as to what were the comments of the eve and whether they have been taken into consideration by the disciplinary authority or not. 51. Despite the factual aspeQLof the case, the learned [SWATANTER KUMAR, J. ] counsel appearing for the appellants has relied upon the judgment of this Court in the case of Sunil Kumar Banerjee v. State of West Bengal & Ors. [1980 (3) SCC 304), contending that it was not necessary and no prejudice had been caused to the respondent because of the aileged non-supply of the Vigilance note. On the contrary, the learned counsel appearing s for the respondents has relied upon the judgment of this Court in the case of State Bank of India & Ors. v. D. C. Aggarwal & Anr. [1993 (1) sec 13). to raise a counter plea that any document taken into consideration for imposing a punishment and if the CVC recommendations were prepared at the back of the officer, the order of punishment so passed would be liable to be set aside.

The proposition of law stated in the above two judgments can hardly be disputed. What is really required to be seen by the Court is, whether the duty to furnish such a report arises out of a statutory rule or in consonance with the 0 principles of natural justice and whether non-furnishing of such a report has caused any prejudice to the officer concerned. 52. From the aforenoticed facts it is clear that, there is nothing on. record to show that the alleged CVC notes have actually been taken into consideration and that the same have affected the mind of the disciplinary authority while considering the defence of the delinquent officer and imposing punishment upon him. Unless such notes were actually considered and had some prejudicial effect to the interest of the delinquent officer, it will not be necessary for the Court to interfere in the aepartmental inquiry proceedings on that ground.

In the case of Sunil Kumar Banerjee (supra), where the Vigilance Commissioner had been consulted, there 'l(Vas alleged nonsupply of Vigiiance Commissioner's report to the officer. A three Judge-Bench of this Court took the view that the findings of the disciplinary authority and its decision was not tainted and, therefore, would not be termed as illegal. The Court in Para 4 of the judgment held as under: "4. We do not also think that the disciplinary authority committed any serious or material irregularity in consulting the Vigilance Commissioner, even assuming that it was so done. The conclusion of the disciplinary authority was not based on the advice tendered by the V,igilance Commissioner but was arrived at independently, on the basis of the charges, the relevant material placed before the Inquiry Officer in support of the charges, and the defence of the delinquent officer.

In fact the final conclusions of the disciplinary authority on the several charges are so much at variance with the opinion of the Vigilance Commissioner that it is impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views the very same material. One of the submissions of the appellant was that a copy of the report of the Vigilance . Commissioner should have been made available to him· when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him.

We do not see any justification for the insistent request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant there was no reference to the view of the Vigilance Commissioner. The findings which were communicated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a copy of the report of the Vigilance Commissioner when the findings communicated to the appellant were those of the disciplinary authority and not of the Vigilance Commissioner. That the preliminary findings of the [SWATANTER KUMAR, J,] disciplinary authority happened to coincide with the views of the Vigilance Commission is neither here nor there. " 53.

No rule has been brought to our notice where it is a mandatory requirement for the disciplinary authority to consult the vigilance officer and take the said report into consideration 8 before passing any order. If that was the position, the matter would have been different. 54. In the present case, firstly, no such rule has been brought to our notice and secondly, there is nothing on record to show that the alleged notes of the eve were actually taken into consideration and the same effected or tainted the findings or mind of the authority while passing the orders of punishment. Thus, in our view, the findings of the Tribunal cannot be sustained in law. Unless the Rules so require, advice of the CVC is not binding. The advice tendered by the CVC, is to enable the disciplinary authority to proceed in accordance w~h law.

In absence of any specific rule, that seeking advice and, implementing thereof is mandatory, it will not be just and proper to presume that there is prejudice to the concerned officer. Even in the cases where the action is taken without consulting the Vigilance Commission, it necessarily will not vitiate the order of removal passed after inquiry by the departmental authority. Reference in this regard can also be made to the judgment of this court in the cases of State of A. P. & Anr. V. Dr. Rahimuddin Kamal [1997 (3) SCC 505) and Deokinandan Prasad v. State of Bihar [1971 (2) SCC 330). In the case of Dr. Rahimuddin Kamal (supra), this Court was concerned with Rule 4(2) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules, 1961, where the expression 'shall' had been used in the Rules, making it obligatory upon the part of the Government, which required it to examine the records and after consulting the Head of the Department, pass an appropriate order.

But before taking a decision, the Government shall consult the Vigilance Commission. In that case the order of removal from service was passed in accordance with law and after conducting appropriate inquiry but without consulting the Commission. The Court expressed the view that the expression 'shall' had to be construed as 'may' and non consultation with the Commission would not render the order illegal or ineffective. In view of the larger Bench judgment and particularly, with reference to the facts of the present case, we are unable to accept the contention of the respondents before us. 55. In its letter dated 28th December, 2001, the respondent claimed certain documents during the course of departmental inquiry. In Annexure-1 to this letter, at Sr. No. 1, he had prayed for the circular dated 28th September, 2000 from CVC to CVO's of all the Ministries. At Sr. No. 2, he had asked for CVC's first stage advice and Railway's note sent to CVC for arriving at the first stage advice.

Thus, both these documents were of a very general nature and in no way suggested that the concerned disciplinary authorities had taken into consideration any particular notes advising action against the said officer. Some element of prejudice is essential before an order of imposing penalty can be interfered with by the Court, particularly when the inquiry otherwise had been conducted in accordance with law and no grievance was raised by the respondent on that behalf except the points raised for consideration of the Tribunal. Thus, we are of the view that no statutory rule or regulation has been violated by the appellant nor any eve notes were actually taken into consideration for imposing the punishment upon the respondent. Thus, the second argument of the respondent also merits rejection. Whether the de facto prejudice was a condition precedent for grant of relief and if so, whether respondents had discharged their onus. 56.

In the submission of the appellants, there is no violation of any statutory rule or provision of the Act. Departmental inquiry has been conducted in accordance with the Rules and in consonance with the principles of natural justice. The respondents have not suffered any prejudice, much less [SWATANTER KUMAR, J. ] prejudice de facto, either on account of retired employees of the railway department being appointed as inquiry officers in terms of the Rule 9(2) of the Rules or in the case of Alok Kumar, because of alleged non furnishing of CVC report. The contention is that the prejudice is a sine qua non for vitiation of any disciplinary order. However, according to the respondents, s they have suffered prejudice ipso facto on both these accounts as there are violation of statutory rules as well as the principles of natural justice. In such cases, by virtue of operation of law, prejudice should be presumed and judgment of the Tribunal and the High Court call for no interference. 57.

Earlier, in some of the cases, this Court had taken the view that breach of principle of natural justice was in itself a prejudice and no other 'de facto' prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rule is merely dictatory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental inquiry where the Department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent.

In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof. Even in the present cases, Rule 9 (2) empowers the disciplinary authority to conduct the inquiry itself or appoint other authority to do so. We have already held that the language of Rule 9(2) does not debar specifically or even by necessary implication appointment of a former employee of the Railways as inquiry officer. Even if, for the sake of argument, it is assumed otherwise, all the respondents have participated in the departmental inquiries without protest an'd it is only after the orders of the competent authority have been passed that they have raised this objection before the Courts.

In tl"1e light of the peculiar facts and circumstances of the present case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired Railway officers as inquiry officers. We have no hesitation in stating that the respondents have no way satisfied this test of law. Thus, if their argument was to be accepted on the interpretation of Rule 9 (2), which we have specifically objected, even then the inquiries conducted and the order passed thereupon would not be vitiated for this reason. 58. Doctrine of de facto prejudice has been ap'plied both in English as well as in Indian Law. To frustrate the departmental inquiries on a hyper technical approach have not found favour with the Courts in the recent times. In the case of S. L. Kapoor v. Jagmohan [1980 (4) SCC 379], a three Judge Bench of this Court while following the principle in Ridge v.

Baldwin stated that if upon attmitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in its selfprejudice would not apply. Thus, every case would . have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S. L. Kapoor (supra) held as under: "18 In Ridge v. Baldwin [1964 AC 40, 68: 1963 2 All ER 66, 73] One of the arguments was that even if the appellant have been heard by the Watch Committee nothing that he· could have said could have made any difference. The House of Lords observed at (p. 68): "It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in its own defence before dismissing him this case was so clear that nothing that the appellant could have said could have made any difference. It is at least [SWATANTER KUMAR, J.

] very doubtful whether that could be accepted as an excuse. But, even if it could, the watch committee would, in my view, fail on the facts. It may well be that no reasonably body of men could have reinstated the ap! Jellant. But at between the other two courses open to the watch committee the case is not so clear. Certainly, on the facts, as we know them the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they have in the exercise of their discretion decided to take a more lenient course. " 59. Expanding this principle further, this Court in the case of K. L. Tripathi v. State Bank of India [(1984) 1 SCC 43] held as under: "It is not possible to lay down rigid rules as to when the o principles of natural justice are to apply, nor as to their scope and extent.

There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subjectmatter to be dealt with, and so forth. " 60. In the case of ECIL v. B. Karunakar [(1993) 4 SCC 727], this Court noticed the existing law and said 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. They are neither 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 denial of report to him, has to be considered on the facts and circumstances of each case.

The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons. It will be useful to refer to the judgment of this Court in the case of Haryana Financial Corporation v. Kai/ash Chandra Ahuja [2008 (9) SCC 31] at page 38 where the Court held as under: "From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. 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 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. " 61. The well established canons controlling the field of bias in service jurisprudence can reasonably extend to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates statutory violations.

It will not be permissible to set aside the departmental inquiries in any of these classes merely on the basis of apprehended prejudice. 62. In the light of the above enunciated rudiments of law, let us revert to the two points argued before us. Firstly, the contention of the respondents that Rule 9 (2) necessarily debars appointment of former railway employees as inquiry officers (other authority) is without any merit. Secondly, they have [SWATANTER KUMAR, J. ] suffered no prejudice at least none has brought to our notice from the record before us or even during arguments. The contention was that this being violation of the statutory rule there sha! I be prejudice ipso facto. We may also notice that the circulars issued by the Department of Railways cannot be ignored in their entirety.

They have only furthered the cause contemplated under Rule 9 (2) of the Rules and in terms of judgment of Virpal Singh Chauhan (supra) the Court had taken the view that circulars should be read harmoniously and in given circumstances, may even prevail over the executive directions or Rules. 63. We do not find any merit even in the contention that if departmental inquiry has been conducted under the Rules of 1968 in accordance with law, principles of natural justice and no de facto prejudice is pleaded or shown by cogent documentation, the court would be reluctant to set aside the order of punishment on this ground alone.

Secondly, the argument in relation to non-furnishing of eve notes is again without any foundation as it has not even been averred in the application before the Tribunal, that these alleged notes were part of the record and that they were actually considered by the Disciplinary Authority and such consideration had influenced the mind of the competent authority while passing the impugned orders. Absence of pleading of these essential features read with the fact that no such documentation has been placed on record except demanding circulars of the CVC, we are of the considered view that even on this account no prejudice, as a matter of fact, has been caused to the delinquent officers (in the case of Shri Alok Kumar). We are not able to accept the contention addressed on behalf of the respondents that it is not necessary at all to show de facto prejudice in the facts of the present cases.

We may notice that the respondents relied upon the judgment of this Court in the case of ECIL (supra), that imposition of punishment by the Disciplinary Authority without furnishing the material to the respondents was liable to be quashed, as it introduced unfairness and violated sense of right and liberty of the delinquent in that case. No doubt in some judgments the Court has taken this view but that is primarily on the peculiar facts in those cases where prejudice was caused to the delinquent. Otherwise right from the case of S. L. Kapoor (supra), a three Judge Bench of this Court and even the most · recent judgment as referred by us in Kai/ash Chandra Ahuja's case (supra) has taken the view that de facto prejudice is one of the essential ingredients to be shown by the delinquent officer before an order of punishment can be set aside, of course, depending upon the facts and circumstances of a given case. c . Judicia posteriora sunt in lege fortiori.

In the later judgment the view of this Court on this principle has been consistent and we see no reason to take any different view. Prejudice normally would be a matter of fact and a fact must be pleaded and shown by cogent documentation to be true. Once this basic feature lacks, the appellant may not be able to persuade the 0 Court to interfere with the departmental inquiry or set aside the orders of punishment. 64. The judgment of the Tribunal and the High Court in our view are contrary to the settled principles of law and thus cannot be sustained, therefore, we set aside the judgment of the Tribunal as well as the High Court in all these cases. The appeals are allowed. However, in the facts and circumstances of the case we leave the'parties to bear their own costs. K. K. T. Appeals allowed.