SUPREME COURT OF INDIA
Shekhar Ghosh
Vs
Union of India and Another
Appeal (Civil) 4635 of 2006 (Arising Out Slp) No. 1400 of 2006)
(S. B. Sinha and Markandeya Katju (Cj), JJ)
01.11.2006
S. B. SINHA, J.
Leave granted.
Appellant was appointed as Khalasi at Kota Railway Station of Western Railway
Administration in the year 1981. On 8th February, 1985, he was promoted as a
Junior Clerk. A test was conducted by Chief Works Manager (Wagon Repair Shop)
of Western Railway, Kota. He qualified in the same test. The Western Railways
Administration started one Railway Electrification Project and he was
transferred thereto in September 1985. While working there as a Junior Clerk,
he was promoted as a Senior Clerk on 24.4.1987 on an ad hoc basis. On
completion of the project, he was repatriated to his original office. Although
he was posted in the office of the Kota Railway Station of Western Railway
Administration, he was kept in the said workshop. A request for change of his
name was agreed to by the competent authority, namely, the second Respondent
herein and his request for absorption on the said post was also accepted.
A complaint against him by four employees working in the Divisional Office of
Kota was made on 4.5.1994 that he was not entitled thereto alleging that the
promotion granted to him was not a regular one. Relying on or on the basis of
the said complaint, a show cause notice was issued on 10.4.1995 to him which is
in the following terms:-
"According to the rule for the change of lien, the application of the
employee should have been forwarded from his parental department. But it did
not happen so and then the Chief Clerk Sh. Hridesh Bhatnagar, employee in the
Establishment Branch in Divisional Office without any enquiry fixed the lien of
Sh. Shekhar Ghosh in the W.B.S.M. Group in the Divisional Office and Rs.5000/-
as a bribe was taken for this forgery work. Sh. Shekhar Ghosh is employed on
today's date as a clerk by way of forgery under Assistant Engineer (Central), Kota.
Sh. Shekhar Ghosh has not even passed any departmental examination for becoming
clerk; even then he has been posted as clerk in a forged manner. When Shri
Shekhar Ghosh had come after having repatriated from R.I. Organisation then he
should have been relieved for Goods Compartment Repairing Factory, Kota and
whatever his position adjusted there as Khalasi or Fitter, there itself he
should have been adjusted. However, it id not happen so. Nothing sort of any
correspondence was done with the parental Department of Sh. Shekhar Ghosh.
In a similar situated case, Sh. Pandey was already refused to take from R.I.
then how the rule framed separately for Sh. Shekhar Ghosh.
Therefore, it is requested that this forgery case of Sh. Shekhar Ghosh be got
enquired into immediately and disciplinary action be initiated against the then
Head Clerk who mislead the administration and having taken bribe in a
fraudulent manner Sh. Shekhar Ghosh made a clerk from Khalasi."
He filed his reply to the show cause requesting that he should be treated to be
a selected Clerk 'whose lien has been changed from WRS to Division' so that his
legitimate dues are saved.
By an order dated 18.10.1996, he was repatriated to his original place of work
i.e. the office of the Chief Manager of Factory, Goods Compartment Repairing
Factory, Kota. Yet again, on 22.10.1996, another Office Order was issued.
Appellant filed an Original Application before the Central Administrative
Tribunal. The operation of the order was stayed by an interim order dated
1.11.1996. However, by an order dated 17.11.1996, the Administrative Tribunal
noticing that his name in the seniority list had been included by way of
mistake, it was opined that there was no illegality or infirmity in the action
taken in repatriating the appellant.
A Writ Petition filed by Appellant questioning the said order had been
dismissed by a Division Bench of the High Court by an order dated 26.10.2004.
The High Court arrived at its findings, inter alia, on the premise that a
finding of fact had been recorded by the Tribunal that Appellant had been
holding the post of a Clerk on regular basis was accepted under a mistake,
holding:-
"The juniors to the petitioner had rightly made a representation
against this untimely service benefits given to the petitioner. It is also not
the case where without notice and affording opportunity of hearing to the
petitioner the impugned order has been passed by the respondent. On the
representation made by the other employees the respondents took all the care and
caution, the enquiry had been conducted and only after detection of the mistake
and after giving opportunity of hearing to the petitioner he was reverted.
After considering the entire record of the writ petition we are satisfied that
the petitioner was rightly repatriated back to the work-shop where he was
holding the lien on the post of khalasi (Gr.II)."
The contention of Appellant was that an entry had been made in his service
record in regard to regularization of his services but no order was served upon
him stating:-
"That the decision of the respondents is contrary to the record. In the
service record of the applicant it has been verified by the competent authority
that applicant is holding the post of Junior Clerk in substantive
capacity."
In the counter-affidavit filed before the Tribunal, Respondents herein accepted
the said contention stating:-
"5(j) That the contents of para no. 5(j) of the original application
are denied. Orders for regularization of the applicant as Clerk were never
passed. The alleged entry made in the service record is also wrong and due to
the mistake committed on part of the answering respondent."
Appellant had asked for production of his service records which was declined.
Respondents, therefore, indisputably proceeded on the basis that a mistake
occurred in making an entry in the service book of the appellant. The mistake
committed admittedly, thus, was on the part of the respondents.
The mistake was said to have been detected on the basis of the complaint made
by four employees. Serious allegations had been made against the appellant
therein. If the allegations made therein were correct; then not only the
appellant but also other officers of the department, whom he had allegedly paid
bribe for forging the documents, were guilty of misconduct.
Appellant had never been supplied with a copy of the said complaint. No
disciplinary proceedings were initiated against him. No charge was framed, nor
any witness was examined. No Inquiry Officer was appointed to conduct an
enquiry into the allegations on the charges of misconduct framed against the
appellant in that behalf.
The order dated 21.11.1996 clearly demonstrates that the Senior Divisional Officer,
Kota, without holding an enquiry arrived at a finding that his original post
was Khalasi in Wagon Repair Shop, Kota and his lien had been cancelled. He was
directed to be repatriated. Despite arriving at such a finding, a
post-decisional hearing was sought to be afforded to the appellant.
A post decisional hearing was not called for as the disciplinary authority had
already made up its mind before giving an opportunity of hearing. Such a
post-decisional hearing in a case of this nature is not contemplated in law.
The result of such hearing was a foregone conclusion.
In K.I. Shephard v. Union of India 3, this
Court opined:-
"...It is common experience that once a decision has been taken, there
is a tendency to uphold it and a representation may not really yield any
fruitful purpose."
[See also V.C. Banaras Hindu University and Ors. v. Shrikant, 2006 (6)
SCALE 66.
We are, however, not oblivious of the fact that there is some shift in the
concept of principles of natural justice which has been noticed by this Court
in P.D. Agrawal v. State Bank of India & Ors., 2006 (5) SCALE 54 in
the following terms:
"The Court has shifted from its earlier concept that even a small
violation shall result in the order being rendered a nullity. To the principal doctrine
of audi alterem partem, a clear distinction has been laid down between the
cases where there was no hearing at all and the cases where there was mere
technical infringement of the principal. The Court applies the principles of
natural justice having regard to the fact situation obtaining in each case. It
is not applied in a vacuum without reference to the relevant facts and
circumstances of the case. It is no unruly horse. It cannot be put in a
straightjacket formula"
It is not denied or disputed that even when a mistake is sought to be
rectified, if by reason thereof, an employee has to suffer civil consequences
ordinarily the principles of natural justice are required to be complied
with. It was so held in Ram Ujarey v. Union of India 8 in the following
terms:-
"17. There is yet another infirmity in the impugned order of reversion. The appellant had been allowed the benefit of service rendered by him as Coal Khalasi in the Loco Department from 1964 to 1972 as that period was counted towards his seniority and it was on that basis that he was called for the trade tests which the appellant had passed and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by him from 1964 to 1972 was intended to be withdrawn and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant. The appellant having earned two promotions after having passed the trade tests, could not have been legally reverted two steps below and brought back to the post of Khalasi without being informed that the period of service rendered by him from 1964 to 1972 could not be counted towards his seniority and, therefore, the promotion orders would be cancelled. In a situation of this nature, it was not open to the respondents to have made up their mind unilaterally on facts which could have been shown by the appellant to be not correct but this chance never came as the appellant, at no stage, was informed of the action which the respondents intended to take against him."
Curiously Respondents in their counter-affidavits filed before the Tribunal and
the High Court did not raise any plea of rectification of any mistake. It was
also not stated in the show cause notice issued to the appellant. Only a plea
of mistake was taken for the first time before the Tribunal, but no plea was
taken that it was entitled to rectify the same or his order impugned before it
was capable of being rectified. Thus, it was not a case where an opportunity of
hearing was given to Appellant on the premise that a mistake had been committed
by the authorities of the first respondent and the same was required to be
rectified.
If a mistake is to be rectified the same should be done as expeditiously as
possible. [See Board of Secondary Education, Assam v. Mohd. Sarjumma 2003
(12) SCC 408
We are not oblivious that in Ram Chandra Tripathi v. U.P. Public Services
Tribunal IV and Others 0, an order passed by
way of a mistake was permitted to be corrected as the same was done in
violation of the order of injunction. In such a situation only, this Court held
that an opportunity of being heard for correcting such mistake would not arise
because there would not have been any occasion to take one view or the other in
the matter on the basis of representation to be made by the affected employee.
It is also not a case where a mistake was apparent on the face of the records
and, thus, compliance of the principles of natural justice would not have made
any difference as was in the case of Smt. Ratna Sen nee Roy v. The State of
West Bengal & Ors. 1995 (1) CalLT 462.
Requirements to comply with the principles of natural justice would, therefore,
vary from case to case. If upon giving an opportunity of hearing to an affected
employee, it is possible to arrive at a different finding, the principles of
natural justice must be complied with. We may notice that recently in Union of
India & Ors. v. Bikash Kuanar 2006 (10) SCALE 86, a Division Bench of
this Court opined:-
"It is now trite that if a mistake is committed in passing an
administrative order, the same may be rectified. Rectification of a mistake,
however, may in a given situation require compliance of the principles of
natural justice. It is only in a case where the mistake is apparent on the face
of the records, a rectification thereof is permissible without giving any
hearing to the aggrieved party."
In this case, Respondents accept that Appellant was entitled to a hearing. All
the necessary ingredients of principles of natural justice were thus required
to be complied with. Appellant as noticed hereinbefore had not been given
adequate opportunity of hearing inasmuch as: (i) the hearing was sought to be given
was a post-decisional one, which is bad in law; (ii) a copy of the complaint
was not supplied to Appellant at furtherance if not proposed that a mistake was
sought to be rectified; (iii) No charges were framed; (iv) no witness was
examined; and (v) no Inquiry Officer arrived at any finding that Appellant was
guilty of the charges levelled against him.
The Tribunal or the High Court did not consider these aspects of the
matter. The impugned judgment, therefore, cannot be sustained.
For the reasons aforementioned, the appeal is allowed. However, in the facts
and circumstances of this case, there will be no order as to costs.