STATE OF U.P.versusSHATRUGHAN LAL AND ANR.

'
t-

                                  STATE OF U.P.                                       A
                                       v.
                           SHA TRUGHAN LAL AND ANR.

                                    JULY 30, 1998

                [S. SAGHIR AHMAD AND G.B. PATTANAIK JJ.]                              B

           Service Law :

           Departmental Enquiry-Supply of documents-Relied on-In Charge-
     sheet-Copies of-Not supplied to delinquent employee-Effect of-Held               C
     Delinquent employee must be informed in writing that he has the right to
     inspect the documents-Lapse in this regard would vitiate the enquiry.

           Departmental Enquiry-Supply of documents-Statements of witnesses
     during preliminary enquiry-Copies ofNot supplied to delinquent employee-
     Effect of-Held : Non-supply of copies of statements deprives the delinquent      D
     employee of an effective opportunity of hearing-Further, copies of statements
     must be supplied where witnesses are proposed to be examined at the enquiry.

            Departmental Enquiry-Hearing-Irregularities in-Prejudice to
     delinquent employee in defending himself-Copies ofstatements of the witnesses
     recorded during preliminary enquiry not supplied to delinquent employee -        E
     Effect of-Held : Employer failed to establish that non-supply of the said
     copies of statements did not cause any prejudice to the delinquent emp/oyee-
     Hence, effective opportunity of hearing not given to him-Therefore, enquiry
     vitiated.

           The respondent was dismissed from Government service after a regular       F
     departmental enquiry. The respondent filed a petition before the State Public
     Services Tribunal challenging the order of his dismissal. The Tribunal
     allowed the petition on the grounds that the copies of documents relied
     on in the charge sheet and the statements of witnesses recorded in the
     preliminary enquiry were not supplied to the respondent. The High Court          G
     summarily dismissed the writ petition filed by the appellant-State. Hence this
     appeaL

          On behalf of the appellant it was contended that copies of the documents
     were not supplied to the respondent as the respondent had every right to
     inspect the same at any time.                                                    H
                                          939
    940                      SUPREME COURT REPORTS                    [1998) 3 S.C.R.

A           Dismissing the appeal, this Court

          HELD: 1. If the appellant did not intend to give copies of the documents
    to the respondent, it should have been indicated to the respondent in writing
    that he may inspect those documents. Merely saying that the respondent could
    have inspected the documents at any time is not enough. He has to be informed
B   that the documents, of which the copies were asked for by him may be
    inspected. The access to record must be assured to him. (943-8]

          2. One of the principles of natural justice is that a person against whom     ~
    an action is proposed to .be taken has to be given an opportunity of hearing.
    This opportunity has to be an effective opportunity and not a mere pretence.
C   In departmental proceedings where charge-sheet is issued and the documents
    which are proposed to be utilised against that person are indicated in the
    charge sheet but copies thereof are not supplied to him in spite of his request,
    and he is, at the same time, called upon to submit his reply, it cannot be said
    that an effective opportunity to defend was provided to him. Copies of the
D   statements of witnesses recorded during the preliminary enquiry must be
    supplied to the delinquent employee particularly if those witnesses are proposed
    to be examined at the departmental trial. [941-F-G; 942-C]
                                                                                        -(
         Chandram Tewari v. Union of India, [1987] Supp. SCC 518; Kashinath
    Dikshita v. Union of India, [1986] 3 SCC 229; State of U.P. v. Mohd. Sharif,
E   [1982] 2 SCC 376 and High Court of Punjab & Haryana v. Amrik Singh,
    [1995] Supp. 1 SCC 321, relied on.

          3. The Tribunal was justified in coming to the conclusion that the
    principles of natural justice were violated and the respondent was not afforded
    an effective opportunity of hearing, particularly as the appellant failed to
F   establish that non-supply of the copies of statements recorded during
    preliminary enquiry had not caused any prejudice to the respondent in
    defending himself. [943-D)

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2469 of
    1982.
G
         From the Judgment and Order dated 4.2.82 of the Allahabad High
    Court in W.P. No. 5062 of 198 I.

            T. N. Singh and R. B. Misra for the Appellant.

H           Dharam Bir Vohra for the Respondents.
                  STATE v. S. LAL (S. SAGHIR AHMAD, J.]                       941
       The Judgment of the Court was delivered by                                     A
       SAGHIR AHMAD, J. The respondent who was a Lekhpal in the service
of the State Government, was dismissed from service after a regular departmental
inquiry. The order of dismissal was challenged before the U.P. Public Services
Tribunal which, by its judgment dated 13.3.81, allowed the claim petition with
the findings that the departmental proceedings conducted against the                  B
respondent as also the Order dated 28.2. 77 by which he was removed from
service were illegal and void. The State of U .P. then filed a writ petition in the
High Court which was dismissed summarily on 4.2.82.

       We have heard learned counsel for the parties. The Tribunal has found
as a fact that copies of the documents which were proposed in the charge-             C
sheet to be produced in the departmental proceedings as proof in support of
articles of charges were not supplied to the respondent. This finding was
based on the own admission of the appellant in the written statement that the
copies of the documents mentioned in the charge-sheet were not supplied to
the respondent which could be inspected by him at any time. The Tribunal              D
further found that the copies of the statement recorded during the preliminary
inquiry on the basis of which the charges were subsequently framed against
the respondent were also not supplied to him. It was, on these two grounds
that it was held by the Tribunal that the inquiry proceedings were bad in law.

       These findings are assailed before us by the counsel for the State of          E
U.P.

       Now, one of the principles of natural justice is that a person against
whom an action is proposed to be taken has to be given an opportunity of
hearting. This opportunity has to be an effective opportunity and not a mere
pretence. In departmental proceedings where charge-sheet is issued and the            F
documents which are proposed to be utilised against that person are indicated
in the charge sheet but copies thereof are not supplied to him in spite of his
request, and he is, at the same time, called upon to submit his reply, it cannot
be said that an effective opportunity to defend was provided to him. see:
Chandrama Tewari v. Union of India, (1987] Supp. SCC 518 = AIR (1988)                 G
SC 117; Kashinath Dikshita v. Union of India & Ors., (1986] 3 SCC 229
=AIR (1986) SC 2118 and State of Uttar Pradesh v. Mohd. Sharif, (1982]
2 sec 376 =AIR (1982) SC 937.

       In High Court of Punjab & Haryana v. Amrik Singh, (1995] Supp.
sec 321, it was indicated that the delinquent officer must be supplied copies H
                                                                                       f
    942                     SUPREME COURT REPORTS                    (1998] 3 S.C.R.

A   of documents relied upon in support of the charges. It was further indicated
    that if the documents are voluminous and copies cannot be supplied, then
    such officer must be given an opportunity to inspect the same, or else, the
    principles of natural justice would be violated.

          Preliminary inquiry which is conducted invariably on the back of the
B   delinquent employee may, often, constitute the whole basis of the charge-
    sheet. Before a person is, therefore, called upon to submit his reply to the
    charge sheet, he must, on a request made by him in that behalf, be supplied            ,.
    the copies of the statements of witnesses recorded during the preliminary
    enquiry particularly if those witnesses are proposed to be examined at the
C   departmental trial. This principle was reiterated in Kashinath Dikshita v.
    Union ofIndia & Ors., [ 1986] 3 SCC 229 (supra), wherein it was also laid down
    that this lapse would vitiate the departmental proceedings unless it was
    shown and established as a fact that non-supply of copies of those documents
    had not caused any prejudice to the delinquent in his defence.

D         Applying the above principles to the instant case, it will be seen that
    the copies of the documents which were indicated in the charge sheet to be
    relied upon as proof in support of articles of charges were not supplied to
    the respondent nor was any offer made to him to inspect those documents.

         Learned counsel appearing for the appellant has contended that the
E   opportunity to inspect the documents was, as a matter of fact, provided to
    him as set out in Paragraph I 0 of the written statement filed before the
    Tribunal, in which, it was, inter alia, indicated as under:

           "The petitioner wa:; required to reply to the charge within a period
           of 15 days from the date of receipt of charge sheet and not from the
F          date of order as alleged in the petition. It is no doubt correct that the
           copies of the documents mentioned in the charge sheet purporting
           to substantiate a particular charge, were not supplied to the petitioner
           because it was not necessary and the petitioner had every right to
           inspect them at any time. It is, therefore, wrong to say that the
G          petitioner was greatly handicapped for want of the copies of the
           documents mentioned above."

          This paragraph of the written statement contains an admission of the
    appellant that copies of the documents spe"cified in the charge sheet were not
    supplied to the respondent as the respondent had every right to inspect them
H   at any time. This assertion clearly indicates that although it is admitted that
                 STATE v. S. LAL [S. SAGHIRAHMAD, J.)                      943
the copies of the documents were not supplied to the respondent and although A
he had the right to inspect those documents, neither were the copies given
to him nor were the records made available to him for inspection. If the
appellant did not intend to give copies of the documents to the respondent,
it should have been indicated to the respondent in writing that he may inspect
those documents. Merely saying that the respondent could have inspected B
the documents at any time is nor enough. He has to be informed that the
documents, of which the copies were asked for by him may be inspected. The
access to record must be assured to him.

      It has also been found that during the course of the preliminary enquiry,
a number of witnesses were examined against the respondent in his absence, C
and rightly so, as the delinquents are not associated in the preliminary
enquiry, and thereafter the charge sheet was drawn up. The copies of those
statements, though asked for by the respondent, were not supplied to him.
Since there was a failure on the part of the appellant in this regard too, the
Tribunal was justified in coming to the conclusion that the principles of
natural justice were violated and the respondent was not afforded an effective D
opportunity of hearing, particularly as the appellant failed to establish that
non-supply of the copies of statements recorded during preliminary enquiry
had not caused any prejudice to the respondent in defending himself.

      For the reasons stated above, the appeal has no merits and is, therefore,
dismissed, but without any order as to costs.

v.s.s.                                                     Appeal dismissed.