SHEKHAR GHOSHversusUNION OF INDIA & ANR.

A                                SHEKHAR GHOSH
                                        v.
                              UNION OF INDIA & ANR.

                                  NOVEMBER I, 2006

B                   [S.B. SINHA AND MARKANDEY KATJU, JJ.]


            Service Law:

C          Reversion-Khalasi promoted as Junior Clerk-On complaint of some
     employees, reverted to the post of [(halasi on the ground that there was
     mistake in the service record-Dismissal of 0.A. by Tribunal upheld by High
     Court-Justification of-Held, not justified as charges were not framed nor
     enquiry/disciplinary proceedings was held-Witness were also not examined-
    &en no steps taken by authorities to rectify the so called mistake-No post
D    decisional hearing also afforded-These aspects were not considered by the
     Tribunal and High Court-Jn view of violation of principles of natural
    justice, impugned judgement set aside.                                             ..
            Administrative law:

E           Principle of natural justice-Compliance of-Held, varies from case to
    case.

           Appellant was appointed as Khalasi at Kota Railway workshop. He was
    promoted as a Junior Clerk. He was ~ransferred in the same capacity to
    Railway Electrification Project. While working there, he was promoted as a
F   senior clerk. 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 lien was agreed to by the competent authority, and his request
    for absorption on the said post was also accepte<!. On complaint of some of the
G   employees, he was repatriated to the worluhop on the post of Khalasi. Appellant
    filed OA before Tribunal, which was dismissed. His writ petition before High
    Court was also dismissed.

           In appeal to this Court, appellant contended that an entry had been made
    in his sert-ice record in regard to regularization of his services, and that he
H                                        274
                         SHEKHAR GHOSH v. U.0.1.                             275
 is holding the post of Junior Clerk in substantive capacity.                       A
      Allowing the appeal, the Court

      HELD: 1.1. 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         B
appellant. The mistake committed admittedly, thus, was on the part of the
respondents. (279-G)
      1.2. 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       C
only the appellant but also other officers of the department, whom he had
allegedly paid bribe for forging the documents, were guilty of misconduct
                                                             [279-H; 280-A)
      -2. Appellant had never been supplied with a copy of the said complaint.
No disciplinary proceedings were initiated against him. No charge was framed,       D
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 Senior Divisional Officer 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, and directed repatriation. Despite
arriving at such a finding, a post-decisional hearing was sought to be afforded     E
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. [280-B-D I
     K.I. Shephardv. Union ofIndia, AIR (1988) SC 686 and V.C. Banaras              F
Hindu University and Ors. v. Shrikant, (2006) 6 SCALE 66, relied on.

      P.D. Agrawal v. State Bank ofIndia & Ors., (2006) 5 SCALE 54, referred
to.

       3. It is not disputed that even when a mistake is sought to be rectified,    G
if by reason thereof, an employee has to suffer civil consequences ordinarily
the principles of natural justice are required to be complied with.

      Ram Ujarey v. Union of India, [1999] 1 SCC 685, relied on.

                                                                                    l{
    276                      SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A         4.1. Respondents in their counter-affidavits filed before the Tribunal and
    theHigh 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
B   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. [281-G-H; 282-A]
          4.2. If a mistake is to be rectified the same should be done as
    expeditiously as possible. It is also not a case where a mistake was apparent
C   on the face of the records and, thus, compliance of the principles.ofnatural
    justice would not have made any difference. 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.
D                                                                    [282-A, B, D, E]
          Board of Secondary Education, Assam v. Mohd. Sarjumma, (2003] 12
    SCC 408 and Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and
    Ors., (1994] 5 SCC 180, relied on.
          Smt. Ratna Sen nee Roy v. The State of West Bengal & Ors., (1995) 1
E   Cal. LT 462 and Union ofIndia & Ors. v. Bikash Kuanar, (2006) lO SCALE
    86, referred to.

          5. 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 had not been given adequate
F   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
G   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. (282-G-H; 283-A-B)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4635 of2006.

H
                   SHEKHAR GHOSH v. U.0.1. [S.B. SINHA, J.]                 277
       From the final Judgments and Orders dated 26.10.2004 and 26.8.2005 of        A
 the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D.B. Civil
 Writ Petition No. 3371/2002 and D.B. Civil Review Petition No. 99/2005 in D.B.
 Civil Writ Petition No. 3371/2002 respectively.

      Sonia Mathur, Pankaj Prasad and Shritika Malik for the Appellant.
                                                                                    B
      T.S. Doabia, Varuna Bhandari Gugnani, D.S. Mabra and B.Krishna Prasad
for the Respondents.

      The Judgment of the Court was del.ivered by

      S.B. SINHA, J. Leave granted.                                                 c
        Appellant was appointed as Khalasi at Kota Railway Station of Western
R~ilway 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           D
  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       E
  for change of his lien 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       F
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.           G
        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
    278                      SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A           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.
B
               , 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 did not happen so. Nothing sort ·of any
C           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.

D                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."             .                       ~~.,

E         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 I 8.10.1996, he was repatriated to his original place of
    work i.e. the office of the Chief Manager of Factory, Goods Compartment
F   Repairing Factory, Kota. Yet again, on 22.10. I 996, 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
G   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 ille~ality or infirmity in the action
    taken in repatriating the appellant.

          A Writ Petition filed by Appellant questioning the said order had been

H
                  SHEKHAR GHOSH v. U.0.1. [S.B. SINHA, J.]                   279
dismissed by a Division Bench of the High Court by an order dated 26.10.2004.       A
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 I B
       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 C
       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            D
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        E
       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:-

       "50). That the contents of para No. S(j) of the original application are , F
       denied. Orders for regularization of the applicant as Clerk were never i
       passed. The alleged entry made in the service record is also wrong iI
       and due to the mistake committed on part of the answering respondent."'

      Appellant had asked for production of his service records which was , G
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
                                                                                    H
    280                      SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A 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.
B 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
C 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.

D         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.J. Shephard v. Union of India, AIR (1988) SC 686, this Court
E 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."

p        [See also VC. Banaras Hindu University and Ors. v. Shrikant, (2006)
    6 SCALE66].

          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
G   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
H
                      SHEKHARGHOSHv. U.O.I. [S.B. SINHA,J.]                     281
            the cases where there was mere technical infringement of the principal.    A
            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       B
    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, [1999] l SCC 685 in the
    following terms:-

            " 17. There is yet another infirmity in the impugned order of reversion. C
            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 D
             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 E
            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 F
            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         G
    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
    o:-der 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
                                                                                       H
    282                      SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A 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,
    c20031 12 sec 408]
B
          We are not oblivious that in Ram Chandra Tripathi v. U.P. Public
    Services Tribunal IV and Ors., (1994] 5 SCC 180, 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
C   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
D   have made any difference as was in the case of Smt. Raina Sen nee Roy v.
    The State of West Bengal & Ors., (1995) I Cal. LT 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 ·~mployee, it is possible to arrive at a different finding, the
E   principles of natural justice must be complied with. We may notice that
    recently in Union of India & Ors. v. Bikash Kuanar, (2006) IO 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
F           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
G   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 po~t-decisional one, which is bad in law; (ii) a copy
    of the complaint was not supplied to Appellant at furtherance if not proposed
H   that a mistake was sought to be rectified; (iii) No charges were framed; (iv)
                     SHEKHAR GHOSH v. U.0.1. [S.B. SINHA, J.]               283
    no witness was examined; and (v) no Inquiry Officer arrived at any finding     A
    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   B
    facts and circumstances of this case, there will be no order as to costs.

    D.G.                                                     Appeal allowed.