Conduct & Disciplinary Rules - 77 & 78 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

        Conduct & Disciplinary Rules - 77 & 78 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

Conduct & Disciplinary Rules – 77

CCS Rules & Principles of Natural justice

 1.    No man should be vexed twice for the same offence

i. The maxim. nemo debit bis vexari implies that no man should be vexed twice.

Art. 20 (2) of the Constitution of India lays down that "No person shall be prosecuted and punished for the same offence more than once".

ii. When in the previous inquiry the officer was exonerated then the decision cannot be reviewed unless permitted by express statutory provisions because of principle that no one should be vexed twice for the same charge also applies to departmental inquiry.

[Kalyan Singh v. State of Punjab ILR (1967) I Punj. 471]

2.    Circumstances under which principles of natural justice inapplicable

(a) Statutory Exclusion : If a statutory provision either specifically or by necessary implication excludes the application of any or all of the principles of natural justice, then the court cannot ignore the mandate of the Legislature or the statutory authority.

[Union of India v. Tulsiram Patel, (1985) 3 SCC 398]

(b) Legislative action : In legislative action like fixing price, etc., it is not necessary to issue notice and afford hearing.

[Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 160]

(c) Necessity : An exception to the rule that no man shall be a judge in his own cause is the doctrine of necessity. An adjudicator who is subject to disqualification on ground of bias or interest may have to adjudicate a claim if there is no other person competent or authorised to do so or the administration would break down.

[J. Mohapatra & Co. v. State of Orissa, (1984) 4 SCC 130]

3.    Whether violation of natural justice can be cured at appellate stage

I, Wade in Administrative Law has said that if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing; instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.

ii. In the leading case of Leary v. National Union of Vehicle Builders, (1970) 2 All ER 713, it has been held that "as a general rule at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body."

Natural justice vis-a-vis departmental proceedings

No commentary on principles of natural justice is complete without bringing out its implications particularly with regard to departmental proceedings. This is because the reasonable opportunity to defend as propounded in Art. 311 (2) is one of the vital aspects of natural justice. It means that there should be procedural fairness before holding a public servant guilty of misconduct and imposing punishment on him for misconduct. As to the rules of Natural justice in relation to Article 311 (2) Venkataraman Aiyar (J) said :

Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and, that no materials should be relied on against him without his being given an opportunity of explaining them. It is hardly necessary to emphasise that the right to cross examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of his right has been prevented by the enquiring officer by not giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had not been held in accordance with the rules of natural justice.

[Union of India v. T. R. Verma, AIR 1957 SC 882]

iii. Application of the principle features of natural justice in relation to departmental proceedings are -

(a) Issuance of charge sheet :

(b) Opportunity to file defence

(c) Disclosure of documents/materials

(d) Inspection of documents

(e) Production of witnesses

(f) Opportunity of Cross-Examination

(g) Legal representation

(h) Notice of enquiry

(i) Adjournment

 

Conduct & Disciplinary Rules – 78

CCS Rules & Principles of Natural justice 

1.    Supply of copy of the Inquiry Report to the delinquent and scope of representation

A new dimension to the principles of natural justice has been added after the 42nd Amendment to our Constitution. Prior to the amendment of Art 311 (2) by the Constitution (42nd Amendment) Act 1976 a Government servant had two opportunities of representing his case;

(a) an opportunity of defending himself on merits;

(b) an opportunity to make a representation against the proposed punishment;

After the 42nd Amendment of Article 311 (2) even though the second opportunity has been abolished, the delinquent Government servant is entitled to a copy of the enquiry report and to make a representation where such report records a finding of guilt and proposes a punishment.

This aspect of principle of natural justice has been fortified in the historic case of Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 47. In that case the Court drew a distinction between the disciplinary inquiry conducted by the disciplinary authority and by the enquiry officer. In the latter case principles of natural justice require that the report of the enquiry officer submitted to the disciplinary authority, on the basis of which that authority is going to take its decision about the delinquent servant, be made available to that servant and he should be given an opportunity to make a representation against any adverse remarks in it. In the former case however no report is prepared and therefore this rule does not apply.

The law laid down in Ramzan Khan case has been further clarified and strengthened in Managing Director, ECIL Hyderabad v. B. Karunakar, (1993) 4 SCC 727 where a Constitutional Bench of the Supreme Court held that reasonable opportunity demands that the disciplinary authority must supply a copy of the inquiry report to that delinquent civil servant for his observation and comments before the disciplinary authority considers the report. Laying down the above proposition as part of the general law of the land founded on the principles of natural justice, the Court also stated that they were not confined only to services strictly covered by Art. 311. They apply to all public or private employments. The Court however applied this decision prospectively.

2.    When the disciplinary authority disagrees with the findings of the Inquiry Officer Scope of representation to be given to the delinquent

Whenever the disciplinary authority disagrees with the inquiring authority on any articles of charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The principles of natural justice require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

[Punjab National Bank v. Kunj Bihari Mishra & another, J.T. 1998 (5) SC 458; 1998 (4) SCALE 608.]