Holding

A dismissal order is not vitiated by the non‑furnishing of the enquiry report unless the delinquent proves that the omission caused prejudice; here, no prejudice was shown, so the dismissal stands.

Summary

Harendra Arora, an Executive Engineer, was charged with irregularities and, after an enquiry, was dismissed. The enquiry report required by Rule 55A of the Civil Services (Classification, Control and Appeal) Rules, 1930 was not furnished to him, leading the Uttar Pradesh Public Services Tribunal to quash the dismissal. The State appealed, arguing that non‑furnishing of the report does not invalidate dismissal unless prejudice is shown. The Supreme Court held that while furnishing the report is a mandatory procedural requirement embodying the principles of reasonable opportunity and natural justice, the dismissal order is not void unless the employee demonstrates actual prejudice. Since Arora did not prove prejudice, the Court set aside the Tribunal’s order and restored the dismissal. The appeal was allowed.

Issues considered

Whether non‑furnishing of the enquiry report under Rule 55A invalidates a dismissal order in the absence of proof of prejudice.
Whether the principle laid down in Managing Director, ECIL v. Karunakar (which requires showing prejudice) applies when a statutory rule expressly mandates furnishing the report.
Whether a procedural violation of a mandatory rule can be cured by substantial compliance.

Legislation cited

Civil Services (Classification, Control and Appeal) Rules, 1930s. Rule 55A
Constitution (Forty-second Amendment) Act, 1976
Constitution of Indias. Article 311(2)

Subjects

Service lawDisciplinary proceedingsRule 55AEnquiry reportNatural justiceArticle 311(2)Prejudice testDismissal

Judgment

STATE OF U.P. A
. v.
HARENDRA ARORA AND ANR.

MAY 2, 2001

[G.B. PATTANAIK AND B.N. AGRAWAL, JJ.] B

Service Law

Civil Services (Classification, Control and Appeal) Rules, 1930-Rule
55A-Dismissal of employee from service-Non-furnishing of enquiry report c
as per the Rules-Effect of-Order of dismissal-Validity of-Article 311 (2)-
Constitution of India.

Respondent, an Executive Engineer, was served with a charge sheet
incorporating various irregularities committed by him during his service.
Mter enquiry, wherein the charges were proved, dismissal of the respondent D
was recommended. The State Government after issuing a notice, dismissed
~'
the respondent from service. The respondent filed a petition before State
,> Public Services Tribunal against the order of dismissal. The Tribunal quashed
the order of dismissal on the ground that the respondent was not served with
a copy of the enquiry report. On appeal by the State, High Court dismissed E
the appeal upholding the order of the Tribunal.

ht appeal to this Court, the State Government contended that the order
of dismissal cannot be invalidated on the ground of non-furnishing of enquiry
report unless it is shown that the respondent was prejudiced thereby.
F
The respondent contended that as per Rule 55A of the Civil Services
(Classification, Control and Appeal) Rules, 1930, and enquiry report has to
be furnished to the respondent, but was not furnished.

Allowing the appeal, the Court G
HELD : Rule 55A of the Civil Services (Classification, Control and
... Appeal) Rules, 1930 embodies the principles of reasonable opportunity and
natural justice. This provision for furnishing a copy of the enquiry report
is a procedural one and of a mandatory character, but even then a delinquent
375 H
376 SUPREME COURT REPORTS [2001] 3 S.C.R.

A has to show that he has been prejudiced by its non-observance. After
submission of enquiry report, the State Government sent a show cause notice
to the delinquent pursuant to which he had shown cause and the disciplinary
authority after considering the same, passed the order of dismissal. It is not
the stand of the respondent that in absence of the enquiry report the could
B not submit an effective show cause before the order of dismissal was passed.
Neither from the order passed by the Tribunal nor the High Court, it would
appear that the respondent had raised this point there that he could not file
an effective show the absence of enquiry report nor it has been stated that
in the show cause reply in cause reply it was complained that the delinquent
had not been served with a copy of the enquiry report. From these facts, it
C is not possible to hold that the respondent has been prejudiced by non-
furnishing of enquiry report. (386-G-H; 390-D; F-H]

Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and
Ors., [1993) 4 SCC 727 CB and Union of India and Ors. v. Mohd. Ramzan
Khan, (1991) 1 sec 588, relied on.
D
Union of India v. Tulsiram Patel, (1985) 3 SCC 398 CB; Charan Lal
Sahu v. Union of India, (1990) 1 SCC 613 CB; Kai/ash Chander Asthana
v. State of U.P., [1988) 3 SCC 600; Jankinath Sarangi v. State of Orissa,
(1969) 3 SCC 392; K.L. Tripathi v. State Bank of India and Ors., [1984) 1
E SCC 43; Sunil Kumar Banerjee v. State of West Bengal and Ors., (1980) 3
SCC 304; State Bank ofPatiala and Ors. v. S.K. Sharma, (1996) 3 SCC 364
and Krishan Lal v. State of J & K, (1994) 4 SCC 422, referred to.

Russel v. Duke of Norfolk and Ors., (1949) 1 All E.R. 109; Ridge v.
Baldwin and Ors., (1964) Appeal Cases 40; R. v. Secretary. of State for
F Transport, ex parte Gwent County Council, (1987) 1 All E.R. 161 and Davis
v. Carew-Pole and Ors., (1956) 1 Weekly Law Reports 833, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5241 of
1998.
G
From the Judgment and Order dated 13 .1.19.98 of the Allahabad High
Court in Writ Petition No. 5225 of 1990.

Y.P. Singh and P.N. Puri for the Appellant.

H D.S. Chaube, B.N. Mishra and S.K. Misra for the Respondents.
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 377

The Judgment of the Court was delivered by A
B.N. AGRAWAL, J. Judgment passed by a Division Bench of the
Allahabad High Court in a writ application dismissing the same has been
challenged in this appeal whereby order passed by Uttar Pradesh Public
Services Tribunal quashing order of dismissal of the respondent no. 1 from
service has been upheld. B

Respondent No. 1 - Harendra Arora (hereinafter referred to as 'the
respondent'), who was temporarily appointed in the year 1960 as Assistant
Engineer in the Irrigation Department of the Uttar Pradesh Government, was
confirmed on the said post and in the year 1963 he was promoted as Executive C
Engineer. On 31.3.1970 the respondent was served with a chargesheet by the
Administrative Tribunal incorporating therein various irregularities committed
by him with regard to the purchase of goods while he was posted as Executive
Engineer at the concerned station, requiring him to submit his explanation
relating thereto which was duly submitted. Upon receipt of the show cause,
full-fledged enquiry was conducted whereafter the Administrative Tribunal D
submitted its report to the State Government recording a finding therein that
the charge was substantiated and recommending dismissal of the respondent
from service, upon receipt of which the State Government issued a show
cause to the respondent as to why he be not dismissed from service. Pursuant
to the said notice, the respondent submitted his reply to the show cause E
notice whereupon the State Government sent the reply to the Administrative
Tribunal for its comments and upon receipt of the same, order was passed
on 13 .3 .1973 dismissing the respondent from service which order was
challenged by the respondent before the High Court by filing a writ application
and the same having abated in view of the coming into force of the U.P. State
Public Services Tribunal Act, 1976, a claim petition was filed by the respondent F
before the U.P. State Public Services Tribunal challenging his aforesaid order
of dismissal. The Tribunal allowed the claim petition and quashed the order
of dismissal principally on the ground that copy of the enquiry report, as
required under Rule 55-A of Civil Services (Classification, Control and Appeal)
Rules, 1930 as amended by the Government ofUttar Pradesh, was not furnished G
to the delinquent against which order when a writ application was filed on
behalf of the State, a Division Bench of the High Court dismissed the same
upholding order of the Tribunal. Hence this appeal by special leave.

Learned counsel appearing on behalf of the appellant in support of the
appeal submitted that in view of the judgment rendered by a Constitution H

-·
378 SUPREME COURT REPORTS (2001] 3 S.C.R. ,_
't--
A Bench of this Court in the case of Managing Director. ECIL, Hyderabad &
Ors., v. B. Karunakar & Ors., [1993] 4 SCC 727, merely because an enquiry
,.
report has not been furnished to the delinquent the same would not invalidate
'";-
the order of dismissal unless it is shown that the delinquent has been
prejudiced thereby and in the present case there is nothing to show that the
B respondent has been prejudiced, as such setting aside the order of dismissal
~
of the respondent from service was uncalled for. Learned counsel appearing t=
on behalf of the respondent, on the other hand, submitted that the law laid
down in the case of ECIL has no application to this case as according to the
set of rules governing service condition of the respondent, there was
requirement of furnishing copy of proceedings of enquiry, which would
C obviously include the enquiry report, whereas in the case of ECIL there was
no such requirement under the statutory rules, rather the requirement was by
virtue of interpretation put forth upon Article 311(2) of the Constitution of
India by a three Judge Bench of this Court in the case of Union of India &
Ors. v. Mohd. Ramzan Khan, [1991] 1 SCC 588, as approved in the case of
ECIL, and consequently the prejudice theory as laid down in the case ofECIL
D will not apply to the present case and the order was rightly quashed for mere
inf~action of the rule in not furnishing copy of the enquiry report. Thus, in
view of the rival contentions, the following question arises for our
consideration:-

E "Whether law laid down in the case of ECIL, to. the effect that the
order awarding punishment shall not be liable to be set aside ipso
facto on the ground of non-furnishing of copy of the enquiry report
to the delinquent unless he has been prejudiced thereby, would apply
to those cases also where under the statutory rules there is requirement ..
of furnishing copy of the enquiry report to the delinquent."
F
For appreciating the question, it would be necessary to refer to the
genesis of the law on the subject of furnishing the report of enquiry officer
to the delinquent. The law on t)le subject can be classified in two compartments
- one is requirement to furnish the enquiry report under the statute and
G another will be according to the principles of natural justice. So far as statutory
requirement is concerned, under Public Servants (Inquiries) Act, 1850 a
provision was made for a formal and public inquiry into the imputation of
misbehaviour against pubilc servants. While the said Act continued to be on
the statute book, the Government of India Act, 1919 was enacted and sub-
sec~on (2) of Seqion 96-B thereof authorised the Secretary of State in Council
H to make ~es regulating their con.ditions of service, inter alia, discipline arid

j-
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 379
conduct pursuant to which the Civil Services Classification Rules, 1920 were A
framed and Rule XIV whereof provided that order awarding punishment of
dismissal, removal or reduction in rank shall not be passed without a
departmental inquiry in which a definite charge in writing has to be framed,
opportunity has to be given to adduce evidence and thereafter finding has
to be recorded on each charge, but there was no requirement under the Rules B
for hearing the delinquent against the action proposed to be taken on the
basis of finding arrived at in the inquiry. The aforesaid Rules were followed
by Civil Services (Classification, Control and Appeal) Rules, 1930 wherein
similar provision was made in rule 55 thereof. Thereafter, in Section 240 sub-
section (3) of the Government of India Act, 1935, on the same lines, it was
provided that the civil servant shall not be dismissed or reduced in rank C
unless he had been given 'reasonable opportunity to show cause against
action proposed to be taken in regard to him '. It was, therefore, held that
in order that the employee had an effective opportunity to show cause against
the finding of guilt and the punishment proposed, he should, at that stage,
be furnished with a copy of finding of the enquiry authority.
D
The aforesaid provision was virtually incorporated in Article 311(2) of
the Constitution. By the Constitution (Fifteenth Amendment) Act of 1963, the
scope of 'reasonable opportunity' was explained and expanded and for the
expression "until he has been given reasonable opportunity to show cause
against the action proposed to be taken in regard to him", the expression E

- "except after an inquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those
charges and where it is proposed, after such inquiry, to impose on him any
such penalty, until he has been given reasonable opportunity of making
representation on the penalty proposed, but only on the basis of evidence
adduced during such inquiry" was substituted. It would thus appear that the F
Fifteenth Amendment, for the first time, in terms provided for holding an
inquiry into the specific charges of which information was given to the
delinquent employee in advance and in which he was given reasonable
opportunity to defend himself against those charges. The Amendment also
provided for a second opportunity to the delinquent employee to show cause G
against the penalty if it was proposed as a result of the inquiry. The courts
held that while exercising the second opportunity of showing cause against
the penalty, the delinquent employee was also entitled to represent against
the finding on 'Charges as well. It appears that in spite of this change, the
stage at which the delinquent employee was held to be entitled to a copy of
the enquiry report was the stage at which the penalty was proposed which H

... •
380 SUPREME COURT REPORTS [2001] 3 S.C.R.

A was the law prevailing prior to the Amendment.

The provisions of Article 311 (2) were further amended by the Constitution
(Forty-second Amendment) Act, 1976 in which it was expressly stated that
"it shall not· be necessary to give such person any opportunity of making
representation on the penalty proposed". The 42nd Amendment while retaining
B the expanded scope of the "reasonable opportunity" at the first stage, viz.,
during the inquiry, as introduced by the Fifteenth Amendment of the
Constitution, had taken away the opportunity of making representation against
the penalty proposed after the inquiry. After the 42nd Amendment, a
controversy arose as to whether when the enquiry officer is other than the
C disciplinary authority, the employee is entitled to a copy of the findings
recorded by him before the disciplinary authority applied its mind to the
findings and evidence recorded or whether the employee is entitled to the
, copy of the findings of the enquiry officer only when disciplinary authority
had arrived at its conclusion and proposed the penalty. After the 42nd
Amendment, there were conflicting decisions of various High Courts on the
D point in issue and in some of the two Judge bench decisions of tl>is Court,
it was held that it was not necessary to furnish copy of the enquiry report.
Tbus for an authoritative pronouncement, the matter was placed for
consideration before a three Judge bench in the case of Mohd. Ramzan
(supra) in which it was categorically laid down that a delinquent employee is
E entitled to be furnished with a copy of the enquiry report for affording him
reasonable opportunity as required under Article 311(2) of the Constitution
and in compliance of the principles of natural justice, and in case no such
report was furnished, the order was fit to be quashed, but it was directed that
the judgment shall be prospective and had no application to orders passed
prior to the date of judgment in Mohd. Ramzan's case.
F
·· Thereupon; as it was found that ,there was a conflict in the decisions
of this Court in.the case of Kai/ash Chander Asthana v. State of U.P., [1988]
3 SCC 600, and Mohd. Ramzan scase, the matter was referred to the Constitution
Bench in the case of ECIL which formulated seven questions for its
G consideration which are enumerated hereunder:-

"(i) Whether the report should be furnished to the employee even
when the statutory rules laying down the procedure for holding
the disciplinary inquiry are silent on the subject or are against
it?
H (ii) Whether the report of the enquiry officer is required to be
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 381
'
furnished to the delinquent employee even when the punishment A
imposed is other than the major punishment of dismissal, removal
or reduction in rank?

(iii) Whether the obligation to furnish the report is only when the
employee asks for the same or whether it exists even otherwise?
B
(iv) Whether the law laid down in Mohd. Ramzan Khan case will
apply to all establishments - Government and non-Government,
public and private sector undertakings?

(v) What is the effect of the non-furnishing of the report on the
order of punishment and what relief should be granted to the C
employee in such cases?

(vi) From what date the law requiring furnishing of the report, should
come into operation?
(vii) Since the decision in Mohd. Ramzan Khan case has made the
law laid down there prospective in operation, i.e., applicable to D
the orders of punishment passed after November 20, 1990 on
which day the said decision was delivered, this question in tum
also raises another question, viz., what was the law prevailing
prior to November 20, 1990?."
E
Interpreting Article 311 (2) even after 42nd Amendment, it has been laid
down categorically by the Constitution Bench that when the enquiry officer
is other than the disciplinary au~hority, the disciplinary proceeding breaks
. into two stages. The first stage ends when the disciplinary authority arrived
at its conclusion on the basis of evidence, enquiry officer's report and
delinquent officer's reply to it. The second stage begins when the disciplinary F
authority decides to impose penalty on the basis of its conclusion. The
employee's right to receive the report has been held to be a part of the
reasonable opportunity of defending himself in the first stage of the inquiry
and after this right is denied to him, he is, in fact, denied the right to defend
himself and to prove his innocence in the disciplinary proceeding. The Court G
held that denial of enquiry officer's report before the disciplinary authority
takes its decision on the charges is not only a denial of reasonable opportunity
to the employee to prove his innocence as required under Article 311(2) of
the Constitution, but is also a breach of the principles of natural justice which
has been regarded as a part of Article 14 of the Constitution by the two
Constitution Benches in the cases of Union ofIndia v. Tulsiram Patel, (1985] H
382 SUPREME COURT REPORTS [2001] 3 S.C.R.

A 3 SCC 398, and Charan Lal Sahu v. Union of India, [1990) 1 SCC 613.
According to the decision in ECIL, said principle will apply even to those ~
cases where the statutory rules on the question of furnishing copy of the
enquiry report are either silent or prohibit the same. In view of the aforesaid
discussions, question no. [i] was answered by the Constitution Bench as
follows:- ,
B
"Since the denial of the report of the enquiry officer is a denial of
reasonable opportunity and a breach of the principles of natural
justice, it follows that the statutory rules, if any, which deny the report
to the employee are against the principles of natural justice and,
c therefore, invalid. The delinquent employee will, therefore, be entitled
to a copy of the report even if the statutory rules do not permit the
furnishing of the report or are silent on the subject."

Question no. (v), i.e., the effect of the non-furnishing of the enquiry
report on the order of punishment, has been answered by the Constitution
D Bench in paragraphs 30 and 31 of the judgment, relevant portion whereof
reads thus:-

"The next question to be answered is. what is the effect on the order
of punishment when the report of the enquiry officer is not furnished
to the employee and what relief should be granted to him in such
E
cases. The answer to this question ha~ to be relative to the punishment
awarded. When the employee is dismissed or removed from service
and the inquiry is set aside because the report is not furnished to
him, in some cases the non-furnishing of the report may have
prejudiced him gravely while in other cases it may have made no
F difference to the ultimate punishment awarded to him. Hence to
direct reinstatement of the employee with back-wages in all cases is
to reduce the rules of ju,stice to a mechanical ritual. 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 not incantations to be invoked nor
G rites to be performed on all and sundry occasions. Whether in fact,
prejudice has been caused to the employee or not on account of the
denial to him of the report, has to be considered on the facts and
circumstances ofeach case. Where, therefore, even after the furnishing .
of the report, no different consequence would have followed, it would
H be a perversion of justice to permit the employee to resume duty and
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 383
to get all the consequential benefits. It amounts to rewarding the A
dishonest and the guilty and thus to stretching the concept of justice
to illogical and exasperating limits. It amounts to an "unnatural
expansion of natural justice" which in itself is antithetical to justice.

Hence, in all cases where the enquiry officer's report is not furnished
to the delinquent employee in the disciplinary proceedings, the Courts B
and Tribunals should cause the copy of the report to be furnished to
the aggrieved employee if he has not already secured it before coming
to the Courtffribunal and give the employee an opportunity to show
how his or her case was prejudiced because of the non-supply of the
report. If after hearing the parties, the Court/Tribunal comes to the C
conclusion that the non-supply of the report would have made no
difference to the ultimate findings and the punishment given, the
Court/Tribunal should not interfere with the order of punishment.
The Court/Tribunal should not mechanically set aside the order of
punishment on the ground that the report was not furnished as is
regrettably being done at present. The courts should avoid resorting D
to short cuts. Since it is the Courts/Tribunals which will apply their
judicial mind to the question and give their reasons for setting aside
or not setting aside the order of punishment, (and not any internal
appellate or revisional authority), there would be neither a breach of
the principles of natural justice nor a denial of the reasonable E
opportunity. It is only if the Court/Tribunal finds that the furnishing
of the report would have made a difference to the result in the case
that it should set aside the order of punishment. "
[Emphasis added]

Question nos. (vi) and (vii), i.e., from what date the law requiring F
furnishing of the enquiry report should come into operation, whether from
November 20, 1990 - the date when judgment was delivered in the case of
Mohd. Ramzan, or even earlier to it - and in case it was held to apply
prospectively, what was the law prevailing prior to November 20, 1990, have
been answered specifically in paragraph 33, relevant portion whereof reads G
thus:-

"It is for the first time in Mohd. Ramzan Khan case that this Court laid
down the law. That decision made the law laid down there prospective
in operation, i.e., applicable to the orders of punishment passed after
November 20, 1990. The law laid down was not applicable to the H
384 SUPREME COURT REPORTS (2001] 3 S.C.R.

A orders of punishment passed before that date notwithstanding the
fact that the proceedings arising out of the same were pending in
courts after that date. The said proceedings had to be decided
according to the law prevalent prior to the said· date which did not
require the authority to supply a copy of the enquiry officer's report
to the employee. The only exception to this was where the service
B rules with regard to the disciplinary proceedings themselves made
it obligatory to supply a copy of the report to the employee. "
[Emphasis added]

Thus, according to the decisions of this Court in the case of Mohd. Ramzan,
C as approved by the Constitution Bench in the case of ECJL, denial of enquiry
officer's report would amount to denial of equal opportunity to the employee
within the meaning of Article 311(2) of the Constitution and is a breach of
principles of natural justice. Both the aforesaid decisions were dealing with
a case where there was no requirement under the rules to furnish copy of the
D enquiry report to the delinquent and the decision in the ECIL case is silent
on the question as to what would be the effect of non-furnishing of copy of
enquiry report in cases where it is required to be furnished under the statutory
rules.

In the present case, the competent authority passed the order of dismissal
E on 13.3.1973, as stated above, on which date, undisputedly, rule 55-A of Civil
Services (Classification, Control and Appeal) Rules, 1930 as amended and
substituted by the U.P. amendment (hereinafter referred to as "the rules"), was
as follows:-

"R.55-A.- After the inquiry against a government servant has been
F completed, and after the punishing authority has arrived at provisional
conclusions in regard to the penalty to be imposed, the government
servant charged shall, if the penalty proposed is dismissal, removal
or reduction, be supplied with a copy of the proceedings prepared
under rule 55 excluding the recommendations, if any, in regard to
G punishment, made by the officer conducting the inquiry and asked to
show cause by a particular date, which affords him reasonable time,
why the proposed penalty should not be imposed on him:

Provided that, if for sufficient reasons, the punishing authority
disagrees with any part or whole of the proceedings prepared under
H rule 55, the point or points of such disagreement, together with a brief
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 385
statement of the grounds thereof, shall also be communicated to the A
government servant charged, along with the copy of the proceedings
under mle 55."
[Emphasis added)

Perusal of the aforesaid rule would show that in a case of dismissal, like the
present one, a government servant is entitled to be supplied with a copy of B
the proceeding prepared under rule 55, meaning thereby the enquiry report
as well.

From a minute reading of the decision in the case of ECIL, it would
... appear that out of the seven questions framed, while answering question nos.
(vi) and (vii), the Constitution Bench laid down that the only exception to the C
answer given in relation to those questions was where the service rules with

- regard to the enquiry proceedings themselves made it obligatory to supply
a copy of the report to the employee. While answering the other questions,
much less answer to question no. (v) which relates to prejudice, the Bench
has nowhere categorically stated that the answer given would apply even in D
a case where there is requirement of furnishing a copy of the enquhy report
under the statutory rules. As stated above, while answering question nos. (vi)
and (vii), the Bench has expressly excluded the applicability of the same to
the cases covered by statutory rules whereas such exception has not been
carved out in answer to question no. (v) which shows that the Bench having
found no difference in the two contingencies - one covered by Article 311(2) E
and another covered by statutory rules - has not made any distinction and
would be deemed to have laid down the law uniformly in both the contingencies
to the effect that if enquiry report is not furnished, the same ipso facto would
not invalidate the order of punishment unless the delinquent officer has been
prejudiced thereby more so when there is no rationale for making any distinction F
therein.

Thus, from the case of ECIL, it would be plain that in cases covered
by the constitutional mandate, i.e., Article 311(2), non- furnishing of enquiry
report would not be fatal to the order of punishment unless prejudice is
shown. If for infraction of a constitutional provision an order would not be G
invalid unless prejudice is shown, we fail to understand how requirement in
the statutory rules of furnishing copy of enquiry report would stand on a
higher footing by laying down that question of prejudice is not material
therein.

The matter may be examined from another vi~w point. There may be H
386 SUPREME COURT REPORTS [2001] 3 S.C.R.

A cases where there are infractions of statutory provisions, rules and regulations.
Can it be said that every such infraction would make the consequent action
void and/or invalid? The statute may contain certain substantive provisions,
e.g., who is the competent authority to impose a particular punishment on a
particular employee. Such provision must be strictly complied with as in these
cases the theory of substantial compliance may not be available. For example,
B where a rule. specifically provides that the delinquent officer shall be given
an opportunity to produce evidence in support of his case after the close of
the evidence of the other side and if no such opportunity is given, it would
not be possible to say that the inquiry was not vitiated. But in respect of
many procedural provisions, it would be possible to apply the theory of
C substantial compliance or the test of prejudice, as the case may be. Even ·
amongst procedural provisions, there may be some provisions of a fundamental
nature which have to be complied with and in whose case the theory of
substantial compliance may not be available, but the question of prejudice
may be material. In respect of procedural provisions other than of a fundamental
nature, the theory of substantial compliance would be available and in such
D cases objections on this score have to be judged on the touchstone of
prejudice. The test would be, whether the delinquent officer had or did not
have a fair hearing. In the case of Russel v. Duke of Norfolk & Ors., (1949)
1 All E.R. 109, it was laid down by the Court of Appeal that the principle of
natural justice cannot be reduced to any hard and fast formulae and the same
E cannot be put in a straitjacket as its applicability depends upon the context
and the facts and circumstances of each case.

Even under general law, i.e., the Code of Civil Procedure, there are
various provisions, viz., Sections 99-A and 115 besides Order 21 Rule 90
where merely because there is defect, error or irregularity in the order, the
F same would not be liable to be set aside unless it has prejudicially affected
the decision. Likewise, in the Code of Criminal Procedure also, Section 465
lays down that no finding, sentence or order passed by a competent court
shall be upset merely on account of any error, omission or irregularity unless
in the opinion of the court a failure of justice has, in fact, been occasioned
G thereby. We do not find any reason why the principle underlying the aforesaid
provisions would not apply in case of the statutory provisions like Rule 55-
A of the Rules in relation to disciplinary proceeding. Rule 55-A referred to
above embodies in it nothing but the principles of reasonable opportunity
and natural justice.

H •: Some decisions in this regard may be referred to. In the case of Ridge
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 387

v. Baldwin & Ors., (1964) Appeal Cases 40, the House of Lords was considering A
a case where a Chief Constable was dismissed from service without notice
and inquiry by the Watch Committee. The question was raised whether the
decision was void or merely voidable. The House of Lords laid down that
such a decision given without regard to the principles of natural justice was
void. The violation in that case, though a procedural one, was of a fundamental
nature as it was a case of total violation of the principles of natural justice. B
In the case of R. v. Secretary of State for Transport, ex parte Gwent
County Council, (1987) 1 All E.R. 161, the Court of Appeal applied the test
of prejudice in a case of enhancement of toll charges over a bridge. The Act
provided for a public hearing before effecting increase. Dealing with a C
complaint of procedural impropriety, the Court of Appeal held that unless
prejudice is established to have resulted from the procedural impropriety, no
interference was called for.

In the case of Davis v. Carew-Pole & Ors., (1956) 1 Weekly Law
Reports 833, it was laid down that mere fact that a person appearing before D
a domestic Tribunal had not been given formal notice of all the matters in
which his conduct was to be called in question, did not necessarily entitle
him to contend successfully that the proceedings were not conducted in
accordance with the principles of natural justice as in that case, no fact was
in dispute in relation to the other matters raised and in the circumstances it
was held that the plaintiff was not prejudiced by the lack of notice. E
In the case of Jankinath Sarangi v. State of Orissa, (1969] 3 SCC 392,
Hidayatullah, C.J., speaking for the Court, while considering the question of
prejudice in a departmental proceeding, approved judgment of the High Court
refusing to grant relief in favour of the delinquent government servant on the F
ground that no prejudice was caused to him and observed thus:-

"From this material it is argued that the principles of natural justice

• were violated because the right of the appellant to have his own
evidence recorded was denied to him and further that the material
which was gathered behind his back was used in determining his
guilt.. ....... There is no doubt that if the principles of natural justice are
G

violated and there is a gross case this Court would interfere by
striking down the order of dismissal; but there are cases and cases.
We have to look to what actual prejudice has been caused to a
person by the supposed denial to him of a particular
right .........Anyway the questions which were put to the witnesses H
388 SUPREME COURT REPORTS [2001) 3 S.C.R.

A were recorded and sent to the Chief Engineer and his replies were
received. No doubt the replies were not put in the hands of the
appellant but he saw them at the time when he was making the
representations and curiously enough he used those replies in his
defence. In other words, they were not collected behind his back and
could be used to his advantage and he had an opportunity of so
B using them in his defence. We do not think that any prejudice was
caused to the appellant in this case by not examining the two retired
Superintending Engineers whom he had cited or any one of them."
[Emphasis added]

C In the case of KL. Tripathi v. State Bank ofIndia & Ors., [1984] 1 SCC
43, while considering the question whether violation of each and every facet
of principles of natural justice has the effect of vitiating the inquiry, this Court
laid down that the inquiry held and the punishment imposed cannot be said
to be vitiated on account of an opportunity of cross-examination of certain
witnesses not having been afforded to the delinquent and observed thus:-
D
"The basic concept is fair play in action administrative, judicial or
quasi-judicial. The concept of fair play in action must depend upon
the particular lis, ifthere be any, between the parties. If the credibility
of a person who has testified or given some information is in doubt,
or if the version or the statement of the person who has testified, 1s,
E in dispute, right of cross-examination must inevitable form part of fair

-
play in action but where there is no lis regarding the facts but certain
explanation of the circumstances there is no requirement of cross-
examination to be fulfilled to justify fair play in action. When on the
question of facts there was no dispute, no real prejudice has been
caused to a party aggrieved by an order, by absence of any formal
F ~·

opportunity of cross-examination per se does not invalidate or vitiate
the decision arrived at fairly. This is more so when the party against
whom an order has been passed does not dispute the facts and does
not demand to test the veracity of the version or the credibility of the
statement."
G [Emphasis added]
In the case of Sunil Kumar Banerjee v. State of West Bengal & Ors.,
(1980] 3 sec 304, in a departmental proceeding a question was raised that the
delinquent who had not examined himself was not questioned by the enquiry
officer on the circumstances appearing against him in the evidence for the
H purpose of enabling him to explain the same as required under rule 8(19) of
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.) 389
the relevant rules. The Court held that as the delinquent was fully alive to A
the allegations against him and had dealt with all aspects of the allegations
in his written defence, he was not prejudiced by the failure of the enquiry
officer to question him. As such, the Court refused to interfere with the
punishment awarded.

In the case of State Bank of Patiala & Ors. v. S.K. Sharma, [1996] 3 B
sec 364, there was a departmental proceeding against an officer in which the
punishment awarded was challenged on the ground that there was violation
of regulation 68(b)(iii) of the Bank Regulations which had statutory force
under which copies of statement of witnesses recorded earlier were required
to be furnished to a delinquent not later than three days before the C
commencement of examination of witnesses by the enquiry officer, but no
such copy was at all supplied and a stand was taken that opportunity was
. afforded to the delinquent to peruse the same and take notes therefrom
though only half an hour before the commencement of the enquiry proceedings.
In these circumstances, it was held that there was substantial compliance of
the regulation as such, the punishment awarded cannot be vitiated on account D
of infractions of the aforesaid regulation in view of the fact that the delinquent,
expressly or by his conduct, would be deemed to have waived the procedural
provision which was of a mandatory character which was conceived in his
interest and not public interest and was not prejudiced thereby, following the
decision of this Court in the case of ECJL. E
In the case of Krishan Lalv. State ofJ&K, (1994] 4 SCC 422, this Court
was dealing with a case where under Section 17(5) of Jammu & Kashmir
(Government Servants) Prevention of Corruption Act, 1962 before awarding
punishment of dismissal a government servant was entitled to be furnished
with a copy of the enquiry report which provision having been violated, the F
question had arisen whether the order awarding punishment was vitiated.
Following the Constitution Bench decision in the case of ECJL, this Court laid
down that if the delinquent has not suffered any prejudice by non-furnishing
of the report, the same would not vitiate the order of punishment and observed
thus:-
G
"We, therefore, hold that the requirement mentioned in Section 17(5)
of the Act despite being mandatory is one which can be waived. If,
however, the requirement has not been waived any act or action in
.. violation of the same would be a nullity. In the present case ~s the
appellant had far from waiving the benefit, asked for the copy of the H
390 SUPREME COURT REPORTS [2001] 3 S.C.R.

A proceeding despite which the same was not made available, it has to
be held that the order of dismissal was invalid in law.

The aforesaid, however, is not sufficient to demand setting aside of
the dismissal order in this proceeding itself because what has been
stated in ECJL case in this context would nonetheless apply. This is
B for the reason that violation of natural justice which was dealt with
in that case, also renders an order invalid despite which the
Constitutioa Bench did not concede that the order of dismissal
passed without furnishing copy of the. inquiry officers report would
be enough to set aside the order. Instead, it directed the matter to
be examined as stated in paragraph 31." [Emphasis added]
c
Thus, from a conspectus of the aforesaid decisions and different
provisions of law noticed, we hold that provision in Rule 55- A of the Rules
for furnishing copy of enquiry report is procedural one and of a mandatory
...
character, but even then a delinquent has to show that he has been prejudiced
D by its non observance and consequently the law laid down by the Constitution
Bench in the case of ECIL, to the effect that an order passed in a disciplinary
proceeding cannot ipso facto be quashed merely because a copy of the
enquiry report has not been furnished to the delinquent officer, but he is
obliged to show that by non-furnishing of such a report he has been prejudiced,
E would apply even to cases where there is requirement of furnishing copy of
enquiry report under the statutory provisions and/or service rules.

Turning now to the facts of the case on hand, it has to be seen whether
by non-furnishing of the enquiry report the delinquent officer has suffered
any prejudice. Undisputedly, after submission of enquiry report the State
F Government sent a show cause notice to the delinquent pursuant to which
he had shown cause and the disciplinary authority after considering the said
show cause, passed the order of dismissal. It is not stand of the respondent ,
that in absence of the enquiry report he could not submit an effective show
cause before the order of dismissal was passed. Neither from the order passed
by the Tribunal nor the High Court it would appear that the respondent had
G raised this point there that he could not file an effective show cause in the
absence of enquiry report nor it has been stated that in the show cause reply
it was complained that the delinquent had not been served with a copy of
the enquiry report. From these facts, it is not possible to hold that the
respondent has been prejudiced by non-furnishing of enquiry report.
.
H For the foregoing reasons, we are of the opinion that the nigh Court
STATE v. HARENDRA ARORA [B.N. AGRAWAL, J.] 391
was not justified in upholding order of the Tribunal whereby order of dismissal A
~· of the respondent from ,service was quashed.

Accordingly, the appeal is allowed and the impugned orders are set
aside, but there shall be no order as to costs.

B.S. Appeal allowed. B

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