The Division Bench of Kerala High Court has recently held that Delinquent’s right to receive the report is considered as the essential part of reasonable opportunity of being heard to be extended to the person affected by the report. It is trite that the principles of natural justice must be read into the unoccupied interstices of the statute/rules or regulations unless there is a clear mandate to the contrary.
Facts
The petitioner was working as the inspector of Police when a departmental enquiry was initiated against him for allegedly manhandling and registering a false case. On the consequence of which a penalty was imposed on the petitioner whereby three increments were barred with a cumulative effect.
It is alleged that the Enquiry Officer was biased which was accepted by the disciplinary authority who issued show cause notice proposing the penalty of reversion of the petitioner to a lower category of Sub Inspector for a period of five years. The petitioner then filed a statutory review petition before the Government against the same, but this was rejected. Aggrieved by the same the petitioner approached the Kerala Administrative tribunal contending that copy of the enquiry report was not furnished to him soon after it was drawn up and the same was given only after a provisional decision was taken to impose a penalty of reduction of rank for a period of five years, by relying on Rule 17 (i) (b) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, (KPDIP) & A Rules.
Accordingly petitioner moved to HC questioning the dismissal of his Original Application filed challenging enquiry report.
Contention Made
Petitioner: That the disciplinary authority accepted the enquiry report and decided to punish the petitioner before giving a copy of the enquiry report to the delinquent or obtaining his remarks which deprived the petitioner of his right to point out the vitiating factors of the enquiry report and also for avoiding punishment on the basis of such a report.
Respondent: that there is no specific rule in the Kerala Police Departmental Inquiries, Punishment and Appeal Rules to give enquiry report at the stage of drawing up of the same to the delinquent cannot be accepted at all.
Court Observation
The Division Bench observed, an enquiry report were given to the applicant only after the Government accepted the findings in the enquiry report and provisionally decided to impose a penalty. It is pertinent to note that the enquiry officer and the disciplinary authority in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all.
The bench further relied on the dictum laid down by the Constitution Bench of the Apex Court in ECIL v. B. Karunakar [(1993) 4 SCC 727] and reiterated that the denial of the supply of the copy of the report, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Art. 226 of the Constitution
Court Judgment
The bench held that, the right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statute, that right being a fundamental and essential part of the natural justice, must be read into every regulation or rules. As a result, the bench set aside the order of the tribunal and allowed the original petition and further directed to start afresh enquiry and same has to be given to the delinquent to offer his explanation within six months.
Case: Jayachandran V. vs State of Kerala & Anr.
Citation: OP(KAT) NO. 130 OF 2022
Bench: Justice A.K. Jayasankaran Nambir and Justice Mohammed Nias C.P.
Decided on: 16th June, 2022.
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