Holding

The disciplinary enquiry was validly conducted under the 1969 Rules, the procedural lapses did not amount to prejudice, and the findings and punishment stand.

Summary

Sunil Kumar Banerjee, an IAS officer, was subjected to a disciplinary enquiry under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. The Commissioner for Departmental Enquiries, Vigilance Commission, West Bengal acted as the Enquiry Officer and recommended reduction in rank. The appellant challenged the enquiry on several grounds: that it was conducted under the repealed 1955 rules, that the Enquiry Officer failed to question him as required by Rule 8(19), that consulting the Vigilance Commissioner (who had no statutory status) vitiated the findings, that the Officer combined the roles of prosecutor and judge, and that he was denied a lawyer and the chance to cross‑examine witnesses, causing prejudice. The Supreme Court held that the enquiry was correctly framed under the 1969 rules, that non‑compliance with Rule 8(19) does not invalidate the enquiry unless prejudice is shown, and that no prejudice was established. It also held that consulting the Vigilance Commissioner did not taint the disciplinary authority’s independent decision and that the Enquiry Officer did not act as both prosecutor and judge. Consequently, the appeal was dismissed.

Issues considered

The enquiry was held under the All India Services (Discipline and Appeal) Rules, 1969 and not the repealed 1955 rules.
Whether the failure to question the officer under Rule 8(19) of the 1969 Rules vitiates the disciplinary enquiry.
Whether consultation of the Vigilance Commissioner, lacking statutory status, invalidates the disciplinary findings.
Whether the Enquiry Officer combined the roles of prosecutor and judge, breaching principles of natural justice.
Whether denial of legal representation and the non‑calling of certain witnesses amounted to prejudice requiring setting aside the punishment.

Legislation cited

All India Services (Discipline and Appeal) Rules, 1969s. Rule 8(19)
Criminal Procedure Code, 1898s. Section 342
Criminal Procedure Code, 1974s. Section 313

Subjects

disciplinary enquiryAll India Services Rulesprocedural fairnessprejudiceVigilance Commissionprosecutor‑judge dual roleright to legal representationadministrative law

Judgment

/

179

SUNIL KUMAR BANERJEE A
v.
,.
STATE OF WEST BENGAL AND ORS.
March 26, 1980
[V. R. KRISllNA IYER, R. S. PATHAK AND 0. CmNNAPPA REDDY, JJ.J B

Service matter-All India Services Discipline and Appeal Rules 1969-
Consultation with Vigilance Commissioner, if vitiates the order-Enquiry Offi·
cer if combined the roles of prosecutor and judge-Reasonable opportunity, if
)'- - denfrd.

The appellant \\'as a n1en1ber of the Indian Administrative Service. In an C
enquiry under rulC 8 of the All India Services (Discipline and Appeal) Rules,
1969 against him the Commissioner for Departmental Enquiries, Vigilance Com.
mission, West Bengal was appointed as the Enquiry Officer. He held that
certain charges framed against the appellant were proved, certain others were
partly proved and one was considered to be a technical omission mther than
a serious lar-;e. The State Vigilance Commission expressed its view on the
Enquiry Officer's Report. Thereafter, after consulting the Union Public Ser· :0.
vice Comn1ission, the State Government, which was the Disciplinary Authority,
imposed on the appellant the punishment of reduction in rank from the stage
of Rs. 2,750 p.m. to the stage ·of Rs. 2,500 p.m. with certain other consequences.
The appellant's writ petition was dismissed by a single Judge of the High
Court and his appeal to the Division Bench was also dismissed.
-In appeal to this Court it was contended by the appellant that instead cf E
holding the enquiry under the All India Services Disciplinary Rules, 1969 it
was held under the All India Services (Discipline and Appeal) Rules, 1955
which were repealed and that this caused prejudice to him; as required by
rule 8 .(19) of the 1969 rules he v,.as not questioned with reference to the
circumstances appearing against him which denied him that opportunity of
explaining the circumstances which "eighed in the mind of the Enquiry
Officer; the Gov~rnment should not have consulted the Vigilance Commis 4
F
sioner \Vho had no statutory st..1.tus; though the ultimate finding was based
on the report of the Vigilance Commission his report was not supplied to him;
the Enquiry Officer combined in hin1self the role of prosecutor and judge and
he \Vas denied a reasonable opportunity Of defending himself as important
\vitness..::s were not called to enable hini to cross-examine them.

Dismissing the appeal, G
HELD : 1. There is no substance in the contention that the 1955 ru!es
• and not 1969 rules were followed. The charges framed against the _appellant
as well as in the first show-cause notice, the reference was clearly tO the 1969
rules. The appellant himself mentioned in one of his letters that the charges
had been framed under 1969 rules. The enquiry report mentioned that the
Enquiry Officer was appointed under the 1969 rules. [183 B-C]. B
2. The appellant was' not questioned by the Enquiry Officer under rule
$(19) of the 1969 rules. The failure tO comply with this requirement did
180 SUPREME COURT REPORTS '(1980] 3 S.C.R.

A not vitiate the enquiry unless the delinquent officer was able to establish pre·
I
judice. [183 C-DJ
In the instant case the single judge as well as the Division Bench found
that the appellant was in no way prejudiced by the failure to observe the
requirement of rule 8(19). [183 G]
3. The provision incorporated in rule 8(19) is akin to section 342 of the
B Criminal Procedure Code of 1898 and section 313 of the Criminal Procedure
Code of 1974. It is now well-established that mere non examination or defec-
8

tive examination under section 342 of the 1898 Code is not a ground for inter·
ference unl.ess prejudice is established. [183 E-Fl ·
K. C. Mathew v. The State of Travancore-Cochin, [1955] 2 S.C.R. 1057;
Bibhutl Bhusan Das Gupta and Anr. v. State of West Bengal, [1969] 2 S.C.R.
c 104; referred to.
4. The appellant was not in the least prejudiced by the failure of the
Enquiry Officer to question him in accordance with rule 8(19). He cross-
examined the witnesses himself, submitted his defence in writing in great detail
and argued the case himself at all stri.ges. The appellant was fully alive to
the allegations against him ond dealt Vv·ith all aspects of the allegations in his
written defence. [183 G-H, 184 A]
5. If the disciplinary authority arrived at its own conclusion on the mate-
rial available to it, its findings and decision cannot be said to be tainted with
any illegality merely because the disciplinary authority consulted the Vigilance
Commission and obtained its views on the very same material. [184 D-E] '
·~
6. The findings which were cornn1unicated to the appellant were those of
the disciplinary authority and it was \I/holly unnecessary for the disciplinary
E ~uthority to furnish the appellant the copy of the report of the Vigilance
Commissioner when the findings con1muniooted to the appellant were those of
the disciplinary authority and not of the vigilance commission. [184 F-G]
7. From the circumstances that the Enquiry Officer considered the report
of investigation with a view to find out if there was material for framing
charges and prepared draft charges, it cannot possibly be said that when he
)
was later appointed he constituted himself both as prosecutor and judge. There
is nothing strange in the same Magistrate who finds prinia-facie case at an ~
earlier stage trying the case, after framing charges. There is therefore ncy
basis for the contention that the Enquiry Officer was prejudiced against the
appellant and combiiled in himself the role of the prosecutor and judge. [185 A.
C-EJ
8. The appellant cross-examined the prosecution witnesses and also examine
ed defence \Vitnesses. Therafter when the matter v.«1s posted for argument
and was adjourned at least once at the instance of the appellant, the appele
lant came forward with an application seeking permission to engage a law-
yer. The Enquiry Officer rejected the application noticing that it was made
at a very late stage. The rules give a discretion to the Enquiry Officer to
permit or not to permit n delinquent officer to be represented by a lawyer.
No prejudice has resulted by the denial of a lawyer. [185 E-Gl
9. A11 the necessary documents were called and there is nothing in the
record to suggest that the appellant wanted any particular witness to be called
and the request was turned down. The grievance of the appe11ant that if the
SUNIL KUMAR v. WEST BENGAL (Chinnappa Reddy, J.) 181

officers who made the notings on the file in connection with some of the A.
charges had been called, he would have been in a position to cross~xamine
t them and elicit statements to substantiate his defence, has neither reasonabl"'
basis nor force. [186 B-0]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1277/1975.
Appeal by Special Leave from the Judgment and Order dated 8
19-9-1975 of the Calcutta High Court in Appeal No. 299/73.
S. N. Chaudhary for the Appellant.
Gobinda Mukhoty and G. S. Chatterjee for the Respondents.

The Judgment of the Court was delivered by.
c
CmNNAPPA REDDY, J.-The appellant, a member of the Indian
Administrative Service, while working as Divisional Commissioner,
Nprth Bengal, was served on May 2, 1970, with a memorandum
of charges and was informed by another memorandum to which
a list of documents and witnesses was attached, that it was proposed
to hold an enquiry against him under Rule 8 of the All India Ser- D
vices (Discipline and Appeal) Rules, 1969, and that, if he so de-
sired, the appellant could inspect the documents mentioned in the
enclosed list. He was further informed that he should submit a
written statement of defence within fourteen days from the date
of completion of inspection. The appellant submitted his written
statement of defence on June 9, 1970. On August 12, 1970 Shri
A. N. Mukherjee, Commissioner for Department Enquiries, Vigi-
lance Commission, West Bengal, was appointed as Enql)iry Officer
to enquire into the charges against the appellant. After completing
the enquiry, the Enquiry Officer submitted a report giving his find-
ings on the various charges. Charge Nos. 2 and 5 were held to be
proved, charge Nos. 3 and 4 partly proved and charge No. 1 f
also proved but considered to be a technical omission rather than
serious lapse. The Vigilance Commission which considered the
Enquiry Officer's report, found that charge Nos. 1, 2, 3 and 5 were
fully proved and charge No. 4 partly proved. On April 6, 1971,
the disciplinary authority namely the Government of West Bengal
G
issued a notice to the appellant informing him that, on a consideration
of the report of the Enquiry Officer they had come to the conclusion
tllat charges Nos. 1, 2, 3 and 5 were fully proved and that charge
No. 4 was partly proved and calling upon the appellant to show
cause why he should not be reduced in rank. The Union Public
Service Commission was then consulted and their advice obtained. II
According to the Union Public Service Commission charg~ No. 3
bad not been proved while charge No. I was proved but was con-
182 SUPREMJJ COURT REPORTS [1980] 3 S·C.R,

sidered to be a technical irregularity and charge Nos. 2, 4 and 5 were
partly proved. Thereafter the Government of West Bengal
came to the final conclusion that charge No. 3 had not been proved,
charge No. 1 had been proved but was only a technical irregularity
and charge Nos. 2, 4 and 5 were partly proved. On those findings
the punishment which was imposed on the appellant was reduction
B 'from the stage of Rs. 2750/- per month to the stage of Rs. 2500/-
per month in the scale of Rs. 2500/· 125/- 2750/- with effect from the
date of issue of the order'. This was, however, not to be a bar to
his earning increments from the stage of Rs. 2500/- from the
date of reduction to the lower stage. Aggrieved by the order of the
Government the appellan,t filed a Writ Petition iu the High Court
of Calcutta. A learned Single Judge of the High Court went into
the matter in great detail, almost as if he was hearing a regular
.appeal, perhaps because one of the arguments urged before him
was that there was no evidence to sustain any of the charges. The
learned Single Judge found that charge Nos. 2, 3 and 5 were not
D provec\, charge No. 4 was partly proved, charge No. 1 was proved
but was only a technical irregularity. He was, however, of the view
that the punishment which was actually imposed on the appellant
could be imposed in respect of charge No. 4 to the extent to which
it was proved. He, · therefore, dismissed the Writ Petition. On
appeal under the Letters Patent a Division Bench of the Calcutta
E High Court came to the conclusion that charge No. 5 was proved,
'•
charge No. I was proved but was a technical irregularity and charge
No. 2 was partly proved. There was a difference of opinion on
' the question whether charge No. 4 was proved. Both the learned
Judges agreed in dismissing the appeal.
The appellant who argued the appeal in person raised several
F contentions. He contended that though the enquiry was to have
been held under All India Services Disciplinary Rules 1969, it was i-n
fact held under the All India Services (Discipline & Appeal) Rules,
1955, which had been repealed. He was thereby prejudiced and in
particular he pointed out that he was not questioned with reference
to the circumstances appearing against him as provided by· sub rule
G
19 of rule 8 of the 1969 rules. He was thus denied an opportunity of
explaining the circumstances which weighed in the mind of the Enquiry
Officer. The appellant also contended that the Vigilance Com-
missioner had no statutory status and he should not have been con-
sulted by the Government. He made a grievance of the circums·
B tance that th~ report of the Vigilance Commissioner was not fur-
nished to him though the ultimate findings of the Government were
based on the report of the Vigilance Commissioner. He further
SUNIL KUMAR v. WEST BENGAL (Chinnappa Reddy, !.) 183

submitted that the Enquiry Officer was prejudiced against him and A
that he combined in himself the role of both prosecutor and judge. '
+ He further submitted that he was denied a reasonable opportunity
of defending himself as important witnesses were not called so as
to enable him to cross examine them though the notings made
by them in the files were relied upon against him. Some of the
additional documents sought by him were not also made available. B
He was also not permitted to engage a lawyer.
There is no substance in the contention of the appellant that
the 1955 rules and not the 1969 rules were followed. As pointed
out by the High Court, in the charges framed against the appellant
and in the first show cause notice the reference was clearly to the C
1969 rules. IThe appellant himself mentioned in one of his
letters that the charges have been framed under the 1969 rules.
The enquiry report mentions that Shri Mukherji was appointed
as an Enquiry Officer under the 1969 rules. It is, however, true that
the appellant was not questioned by the Enquiry Officer under rule
8 (!'9) which provided as follows: D
"The enquirying authority may, after the member
of the services closes his case and shall if the member
of the service has not examined himself, generally ques-
tion him on the circumstances appearing against him in
the evidence" for the purpose of enabling the member of E
the service to explain any circumstances appearing in
the evidence against him".
It may be noticed straightaway that this provision is akin to sec-
tlon 342 of the Criminal Procedure Code of 1898 and section
313 of the Criminal Procedure Code of 1974. It is now well p
established that mere non examination or defective examination
under section 342 of the 1898 Code is not a ground for interference
unless prejudice is established, vide, K. C. Mathew v. State
of Travancore-Cochin (1), Bibhuti Bhusan Das Gupta & Anr. v.
State of West Bengal (2). We are similarly of the view that failure
to coinply with the requirements of rule 8 (19) of the 1969 rules G
does not vitiate the enquiry unless the delinquent officer is able
to establish prejudice. In this case the learned single Judge of the
High Court as well as the learned Judges " of the Division Bench
found that the appellant was in the way prejudiced by the failure
to observe the requirement of rule 8 (19). The appellant cross-
examined the witnesses himself, submitted his defence in writing H
(I) [1955] 2 S.C.R. 1057.
(2) (1969] 2 S.C.R. 104
184 SUPREME COURT REPORTS [1980] 3 S.C.R.

A in great detail and argued the case himself at all stages. The
appellant was fully alive to the allegations against him and dealt
with all aspects of the allegation in his written.defence. We do not +
think that he was in the least prejudiced by the failure of the Enquiry
Officer to question him in accordance with rule 8 (19).

B We do not also think that the disciplinary authority com-
mitted any serious or material irregularity in consulting the Vigi-
lance Commissioner, even assuming that it was so done. The con-
clusion of the disciplinary authority was not based on the advice
tendered by the Vigilance Commissioner but was arrived at indepen•
dently, on the basis of the charges, the relevant material placed
before the Enquiry Officer in support · of the charges, and the de·
fence of the delinquent officer. In fact the final conclusion of the·
disciplinary authority on the several charges are so mnch
at variance with the opinion of the Vigilance Commissioner tbat
it is impossible to say that the disciplinary authority's mind was in
any manner influenced by the advice tendered by the Vigilance
D Commissioner. We think that if the disciplinary authority arrived
at its own conclusion on tbe material available to it, its findings
and decision cannot be said to be tainted with any illegality merely
because the disciplinary authority consulted the Vigilance Com-
missioner and obtained his views on the vary same material.
.One of the submissions of the appellant was that a copy of the report
E of the Vigilance Commissioner should have been made available
to him when he was called upon to show cause why the punish-
ment of reduction in.rank should not be imposed upon him. We
do not see· any justification for the insistant request made by the
appellant to the disciplinary authority that the report of the Vigi-
lance Commissioner should be made available to him. In the
preliminary findings of the disciplinary authority which were CO!D·
municated to the appellant there was no reference to the views of the
Vigilance Commissioner. The findings which were communkated
to the appellant were those of the disciplinary authority and it
was wholly unnecessary for the disciplinary authority to furnish
G the appellant with a copy of the report of the Vigilance Commissioner
when the findings communicated to the appellant were those of the
disciplinary authority and not of the Vigilance Commission. That
the preliminary findings of the disciplinary authority happened to
coincide with the viel'(s of the Vigilance Commission is neither here
nor there.
H
We find no basis for the contention of the appellant that there
was a reasonable apprehension in his mind that the Enquiry Olllcer
SUNIL KUMAR v. WEST BENGAL (Chinnappa Reddy,!.)_ 185

was prejudiced against him. Nor do we agree with the statement A
that ~e Enquiry Officer combined in himself the role of the pro~
secutor and the judge. It appears that when the preliminary report
of investigation was considered by the Vigilance Commissioner
with a view to recommend to the disciplinary authority whether
a disciplinary proceeding should be instituted or not, the report
of investigation wa£ referred by the Vigilance Commissioner to Shri B
A.N. Mukherji for his views and for the preparation of draft charges
if institution of disciplinary proceedings was to be recommended.
Shri Mukherji expressed his opinion that there was material for
framing five charges and he also prepared five draft charges and for-
warded them to the. Vigilance Commissioner. The Vigilance Com-
missioner in turn forwarded the papers to the Government who c
finally decided to institute a disciplinary proceeding against the
appellant. Thereafter Shri A. N. Mukherji was appointed as
Enquiry Officer. From the circumstance that Shri Mukherji con-
sidered the report of investigation with a view to find out if there was
material for framing charges and prepared draft charges, it cannot
D
possibly be said that Shri A. N. Mukherji, when he was later
appointed as Enquiry Officer constituted himself both as prosecutor
and judge. Anybody who is familiar with the working of criminal
courts will atonce realise that there is nothing strange in the same
Magistrate who finds a prima facie case and frames the charges,
trying the case also. It cannot for a moment be argued that the E
Magistrate having found a prima facie case at an earlier stage and
framed charges is incompetent to try the case, after framing charges.
This was one. of the circumstances on which the appellant relied to
substantiate his allegation of apprehension of bias. The other cir-
cumstances were that he did not permit the appellant to engage a
lawyer and that he allowed the Presenting Officer to introduce F
extraneous matters. The rules give a discretion to the Enquiry
Officer to permit or not to permit a delinquent Officer to be rep-
resented by a lawyer. In the present case the appellant cross-exa-
mined the prosecution witnesses and also examined defence witnesses.
Thereafter when the matter was posted for arguments and was ad-
journed atleast once at the instance of the appellant, the appellant G
•.,. came forward with an application seeking permission to engage a
lawyer. The Enquiry Officer rejected the application noticing that
• it was made at a very belated stage. We think he was right m
doing so. Nor is it possible for us to infer bias from the circums-
tance that the Enquiry Officer did not allow the appellant to en- H
gage a lawyer. We may mention that the appellant who himself
presented his case before us argued admirably and with such clarity
13-189 SC!/80
186 SUPREME COURT REPORTS [198Q] 3 S.C.R.

A · and precision as would have done credit to the best of advocates.
We cannot conceive of any prejudice resulting to him by the
denial of a lawyer. The other circumstance regarding extraneous
matters being allowed to be brought in is also equally weightless
and we need say nothing more about it. ,.
B There is also no substance in complaint of the appellant that
necessary documents and witnesses were not called. All necessary
documents were called and there is nothing in the record to suggest
that the appellant wanted any particular witness to be called and
the request was turned down. The grievance of the appellant is
that if the Officers who made the notings ou the file in connection
c with some of the charges had been called, he would have been iu a
position to cross examine them and elicit statements to substan-
tiate his defence. We do not think that there is any reasonable
basis in the record for such a submission. We find no force in any
of the~contentions raised by the appellant and having given our
earnest consideration to all the contentions raised by him we dismiss
D the appeal. but, in the circumstances of the case, without oosts.
The appellant made a complaint before us that his pension and
other retirement benefits have not yet been finalised though it is
quite a considerable time since he voluntarily retired from service.
Shri Mukhoti learned counsel for the State of West Bengal stated
at the Bar that all steps would now be taken to finalise the matter.
E We hope the Government will take immediate steps to redress forth-
with this grievance of the appellant.

N.K.A. Appeal di8misseti.

'
·~

•