JUDGMENT Yatindra Singh, J
1. The main question involved in this writ petition relates to the procedure to be adopted in a case where the disciplinary authority does not agree with the report of inquiry officer exonerating the charged officer. In such a case, is he required to give two notices: one before recording the finding on guilt of the charged officer and the second before awarding punishment or can these two notices be combined into one?
THE FACTS
2. The petitioner was the Manager (shipping) Transmission Division, with Indian Telephone Industries Ltd. Naini, Allahabad (ITI). He was charge-sheeted on 18.1.1996. Three charges (see endnote-1) were levelled against the petitioner. The inquiry officer exonerated the petitioner from all the charges. The disciplinary authority did not agree with the inquiry report and issued a show cause notice dated 7.7.1999 mentioning reason for his disagreement and also asking him to show cause why he may not be removed from service. The petitioner filed his reply and sought time to see some more documents before submitting his reply. These documents were shown to him on 11.8.1997 and he submitted his reply on 22.9.1997. The disciplinary authority found the charges nos. 1 and 2 to be proved against the petitioner and by his order dated 22.5.1998 removed the petitioner from service. The petitioner filed an appeal which was dismissed on 16.11.1998, hence the present writ petition.
POINTS FOR DETERMINATION
3. We have heard counsels for the parties. Following points arise for determination:
(i) In this case, the disciplinary authority disagreed with the finding of the inquiry officer. He gave one show cause notice. Did he follow the correct procedure before awarding the punishment?
(ii) The case of the charged officer is that some documents were not given/shown to him. Is it correct? Were the principles of natural justice violated?
(iii) Whether the finding of the disciplinary authority on charge nos. 1 and 2 is illegal?
POINT NO. 1: CORRECT PROCEDURE HAS BEEN FOLLOWED
4. The counsel for the petitioner submitted that:
7 The disciplinary authority ought to have given two notices to the petitioner: first one should have been tentative notice alongwith reasons of disagreement.
7 In case the disciplinary authority was not satisfied with the explanation of the petitioner on the tentative notice then he should have given second notice regarding proposed punishment.
7 The aforementioned two notices can not be combined together.
7 The principles of natural justice also require that the process of coming to the conclusion on the charges and the punishment be separately undertaken The Kunj Bihari And Bagde Case Are Not Applicable
5. The counsel for the petitioner cited Punjab National Bank vs. Kunj Behari Mishra : 1998(7) SCC 84 = 1998 (5) JT 548 (the Kunj Behari case) and Yoginath D Bagde vs. State of Maharashtra : AIR 1999 SC 3734 = (1999) 7 SCC 739 = 1999(6) JT 62 (the Bagde case). He relied upon following observations in the Bagde case.
But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with.
6. In the Kunj Bihari case, the inquiry officer had exonerated the charged officer. The disciplinary authority without giving any show cause notice disagreed with the finding recorded by the inquiry officer and punished the officer. In this case a notice has been issued: the Kunj Bihari case is not applicable to the facts of this case.
7. Let us consider the facts of the Bagde case.
8. Sri Bagde was a judicial officer. He was charge-sheeted for demanding bribe from an accused regarding two session trials. The inquiry officer had exonerated Sri Bagde from the charges. The disciplinary authority came to different conclusion and gave notice to him to show cause as to why he may not be dismissed from service. Shri Bagde was dismissed from service. Sri Bagde challenged his dismissal in a writ petition which was dismissed by the High Court and the matter was taken to the Supreme Court. The Supreme Court held that enquiry officer had rightly exonerated the officer and the disciplinary authority had wrongly held Shri Bagde to be guilty. This is clear from the following findings recorded by the Supreme Court.
'This was enough to falsify the whole story and the enquiry officer was justified in rejecting the story of demand in the background of other facts set out above.
We fail to appreciate the approach of the Disciplinary Committee which has gone by surmises and conjectures rather than by the evidence on record.
After withdrawal of the transfer applications, when the appellant proceeded with the two sessions trials, the Disciplinary Committee inferred that the appellant was still pursuing his earlier demand of bribe as otherwise he himself would have written that he would not do these cases. This, we feel, is wholly fallacious.
Having regard to the circumstances of this case, we are of the view that the Disciplinary Committee was wholly in error in disagreeing with the findings recorded by the enquiry officer and the charges levied against the appellant were not established.'
9. The aforesaid findings were sufficient to decide the Bagde case in favour of Shri Bagde. Nevertheless the Supreme Court considered the minutes of the disciplinary authority and came to a conclusion that the disciplinary authority had recorded a final finding regarding guilt of Shri Bagde without any notice to him. This is clear from the following observations of the Supreme Court: 'It is true that along with the show cause notice, the reasons on the basis of which the Disciplinary Committee had disagreed with the findings of the District Judge were communicated to the appellant but the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. 'Alongwith the show cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he [Shri Bagde] was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved.
'The Disciplinary Committee consisted of five senior most Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service.'
10. The observation relied upon by the counsel of the petitioner (paragraph 5 of this judgement) were made in the light of the facts of the Bagde case. In that case no opportunity was given to the charged officer before reversing the finding on the charges. This is not the case here.
11. Here the disciplinary authority did not record final finding regarding charges before issuing notice to the petitioner as was in the Bagde case. In this case reason for disagreement were mentioned in the show cause notice dated 7.7.1997. It was merely provisional. This is clear from the following excerpt from the show cause notice dated 7th July 1997.
'This, after careful consideration of the evidence which has been produced for substantiating the charges one and two, the undersigned has provisionally come to the conclusion that Sri Lav Nigam, St. No. 247 (o) is not a fit person to be retained in the services of the company and that a major penalty should be imposed on Sri Lav Nigam and accordingly proposes to impose on him the penalty of removal under rule 25(f) of the conduct, discipline and Appeal Rules, 1975 of the ITI Limited.'
12. There is nothing on record to show that in this notice the ITI had recorded a final finding regarding guilt of the petitioner. In fact notice itself shows that this is merely provisional and not final. This is how it was interpreted not only by the ITI but also by the petitioner. The reply to the show cause dated 22.9.1997 is also on the record. This reply shows that the petitioner had dealt with the merit of the findings on the charges. The dismissal order is also on the record of the case. The order discusses the different points on the merits of the case raised by the petitioner in his reply. This shows that no finding was recorded on the charges without affording opportunity to the petitioner. The Bagde case is not applicable to the facts of this case.
13. The Supreme Court in the Bagde case did not lay down that in the event the disciplinary authority did not agree with the inquiry officer then he is required to give two notices. It only lays down that the disciplinary authority before finally recording finding on the charges should hear the charged officer and in order that it is more effective and fair, the charged officer may be informed of tentative reasons for disagreement. Let us consider if this is mandated by the principles of natural justice.
Separate Notices_Not Required Under Principles of Natural Justice
14. The principles of natural justice are neither carved on stone nor are inflexible. It has been held that:
'The applicability of the principles of natural justice is not a rule of thumb or a strait jacket formula as an abstract proposition of law.' {Maharashtra State Board of HS Education Vs S. Gandhi 1991 (2) SCC 716 (22)} '[They] are not rigid rules [but] are flexible and their application depends upon the setting.' {RS Dass vs Union of India AIR 1987 SC 593 (24) and Sarat Kumar Das Vs Biswajit Patnaik 1995 (Supp) 1 SCC 434 (11)} 'What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case.' {AK Karipak Vs. Union of India; AIR 1970 SC 150}.
15. The principles of natural justice are also neither ultimate aim of any jurisprudence nor end in themselves. The aim of any jurisprudence is fairness. The relevant question in all proceeding is, 'But, is it fair'(See end note 2). If, the procedure is fair, the end result is fair; then it is not only sufficient compliance of the principles of natural justice but is an end of the matter. It has been said, 'The courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.' {Lloyd Vs. Mc Mahaon (1987) A.C.625, 702-3} 'The test today of whether to supplement statutory procedure is no longer whether the statutory procedure alone could result in manifest unfairness. The preferable view is that fairness tout court [French words meaning without nothing added or simply] must be attained Under either test factors likely to be relevant [are]: the comprehensiveness of the code, the degree of deviation from the statutory procedure required, and the overall fairness of the procedures to the individual concerned' (Judicial Review of Administrative Action _ De Smith Vth Ed. 409).
'[If] it can be demonstrated that the procedure followed has represented a genuine attempt, reasonable in all the circumstances it is unlikely the court will intervene through judicial review and to strike [it] down.' {Waite Jin R Vs. Norfolk Country Council, ex p M (1989) 2 All ER 359 at 367}
16. Fairness, and not the blind application of the principles of natural justice, is the end result. It is for this reason that Lord Denning (see endnote-3) remarked, 'It is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and their extent. Everything depends on the subject matter.' Halsbury's laws of England 4th edition volume 1 (para 74) states, 'The presumption in favour of importing the rule [Audi alteram partem] may be partly or wholly displaced: where it is impracticable to give prior notice or an opportunity to be heard; or where an adequate substitute for a prior hearing is available.' So does the Garner's Administrative Law (page 256) 'The question that needs to be considered is not the very general one "what does audi alteram partem require"', but rather "what in particular situations may audi alteram partem be held to require"' To predict the operation of the audi alteram partem principle requires judgement of context rather than mere knowledge of "black-letter" rules.
17. The courts have evolved different principles to ensure fairness. May it be: the promissory estoppel, or the legitimate expectation, or the principles of the natural justice, or the Wednesbury principle, or any other principle (bad faith, irrelevant consideration, acting under dictation etc.) on which judicial review is permissible. These are different tools to ensure that the proceeding and the end result is fair. These tools, or principles will (if not already) merge into one fairness. The World of Physics is yet to find its Theory of Everything (TOE) but the jurisprudence has already found its TOE in fairness. It is on this yardstick that all actions are to be judged. And it is this yardstick on which action of the disciplinary authority in this case should be judged.
18. Applying the principles of natural justice to the context of the case; applying the yardstick of fairness, there is no necessity that two separate notices ought to be given. The only necessity is that the charged officer should be informed the reasons for disagreement and heard before recording final finding on charges. In case the disciplinary authority comes to conclusion that the charges are proved then he may be punished. These two may be combined in one notice. This has been done in this case: there is no unfairness; there is no violation of principles of natural justice on this account POINT NO. 2: DOCUMENTS WERE SHOWN
19. The counsel for the petitioner submitted that principles of natural justice were violated as the relevant documents were not given/shown to the petitioner.
20. The petitioner was given a notice by the disciplinary authority and thereafter he had sought time to see documents. These documents were shown to him on 11.8.1997 and thereafter he submitted his reply on 22.9.1997. In this reply the petitioner has not stated the specific documents which, he had demanded and, were not shown to him. Thereafter the petitioner filed appeal. In this appeal also he had not stated any specific document which he wanted to see and was not shown to him. In this writ petition nothing has been stated about any specific document though some allegations are made in the rejoinder affidavit. This point was not raised before the authority: it can not be raised here. As a matter of fact, the petitioner was shown documents and was again shown other documents that he wanted to see by the disciplinary authority. There is no violation of principle of natural justice.
POINT NO. 3: FINDING IS NOT ILLEGAL
21. The counsel for the petitioner submitted that there is no dispute that the goods have been received by the parties to whom they had been dispatched and as such finding recorded by disciplinary authority is perverse.
22. The charges against the petitioner were not that the goods were not transported: the charges against him were that he produced fraudulent bills/receipts of the transport company. The owner of the transport company was produced and he has stated that neither he had transported the goods nor he had received the goods. It is only after considering this evidence and reply of the petitioner that the disciplinary authority has recorded a finding that the petitioner is guilty of charges no. 1 and 2. This has been accepted by the appellate authority. This is a finding of fact. It can not be interfered in writ jurisdiction.
CONCLUSION
23. Our conclusions are as follows:
I. The ultimate aim of any jurisprudence is fairness. Principles of natural justice, or promissory estoppel, or the legitimate expectation, or the Wednesbury principle, or any other principle (bad faith, irrelevant consideration, acting under dictation etc.) on which judicial review is permissible are tools to achieve fairness.
II. The Kunj bihari and Bagde case are not applicable to the facts of this case.
III. In the event, the disciplinary authority disagrees with the inquiry officer exonerating the charged officer, then there is no necessity that two separate notices be given. The only necessity is that the charged officer should be informed about the reasons for disagreement and heard before recording final finding on charges. In case the disciplinary authority comes to conclusion that the charges are proved then he may be punished. These two may be combined in one notice.
IV. In this case, the charged officer was informed about the tentative/provisional reasons of disagreement by the disciplinary authority and was heard before recording final finding on the charges.
V. All documents that the charged officer wanted to see were shown to him.
VI. The finding of the disciplinary authority is not illegal. In view of our conclusions, the writ petition has no merit and it is dismissed.
End note-1: Following three charges were levelled against the petitioner. Article I. Sri Lav Nigam staff no. N-247 (0) while functioning as manager (shipping), Transmission Division during the period 1990-92 produced 87 receipts purported to have been issued by Raj Road Lines, 291-Muthhi Ganj, Allahabad duly verified by him towards adjustment of advances drawn by him and fraudulently claimed Rs. 45650/- pertaining to transport charges since the said transport company had not supplied trucks nor received any amounts towards transport charges and thus, derived undue pecuniary benefits.
Article II. Sri Lav Nigam staff no. N-247 (0) while functioning as manager (shipping), Transmission Division forwarded 107 false and fictitious receipts for Rs. 42,940/- ostensibly incurred for loading and unloading operations by means of transport referred in Article I, above and thereby derived undue pecuniary benefits. Article III. Sri Lav Nigam staff no. N-247 (0) while functioning as manager (shipping), Transmission Division, produced 26 false and fictitious bills pertaining to loading and unloading of certain items of equipments wherein he had claimed the charges more than once for the same item and thus derived undue pecuniary benefits.
End note-2: Chief Justice Earl Warren, born on March 19, 1891, was the 14th Chief Justice of the United States of America (1953-69). 'But, is it fair' was a question that most of the lawyers appearing before him had to answer. It was on this touchstone that he tested all state actions. And this may well be the question to ask so far as administrative law is concerned.
End note-3: This was in R Vs Gaming Board 1970(2) All ER 528. This in turn was based on off quoted dictum of Tucker LJ in Russell Vs. Duke of Norfolk; 1964(1) ALL ER 109 and Durayappah Vs Fernando; 1967(2) ALL ER 152.