1998 JTR(SC) 302
1998 AIR(SC) 2961 ; 1998 AIR(SCW) 2811 ; 1999 1 ALT(SC) 19 ; 1998 2 CLR 409 ; 1998 4 JT 476 ; 1998 LIC 3023 ; 1998 3 LLN 39 ; 1998 3 RSJ 477 ; 1998 4 SCC 37 ; 1998 SCC(L&S) 1124 ; 1998 4 SCT 372 ; 1999 1 UPLBEC 403 ; 1998 KHC 893 ; 1998 8 Supreme 484
1998(8) Supreme 484
Supreme Court of India
(From CAT, Chennai)
K. Venkataswami & A.P. Misra, JJ.
K. Vijayalakshmi -Appellant
versus
Union of India & Ors. -Respondents
Civil Appeal No. 464 of 1997
Decided on 3-3-1998
Important Point
Where copy of document relying on which action against employee was taken was not supplied to employee, action of department could not be sustained.
Act Referred :SERVICE LAW : .
(A) The relevant provisions of the Service Law were applied in this proceeding where an appointment made under a departmental competitive examination was challenged on the basis of procedural unfairness. The impugned order relied upon an expert opinion from a forensic science authority without providing the same to the concerned party, which was treated as a decisive factor in setting aside the administrative action.
(B) The principles of natural justice demand that a party must be given a reasonable opportunity to be heard, and any material document, especially one that forms the basis of an adverse finding, must be disclosed to the concerned party to enable a fair rebuttal.
Facts of the case:
The appellant was shortlisted based on merit in a departmental examination for a post, but her selection was cancelled after an inquiry into alleged unfair means in the examination. The crucial expert opinion that substantiated the allegations was not supplied to her, even though the same was admitted by the opposite party.
Findings of Court:
The Tribunal and the appellate authority failed to address the core ground of non-disclosure of the expert opinion, and the conclusion drawn from that document was held to be unsupported due to the denial of the document to the appellant.
Issues:
Whether an expert opinion relied upon for adverse action can be withheld from the party, and whether an order based on such undisclosed material can be sustained.
Ratio Decidendi:
An administrative order that proceeds on the basis of a material document, such as an expert forensic opinion, without providing it to the affected party violates principles of natural justice and renders the order unsustainable.
Result:
The impugned orders were set aside and the case was remanded for reconsideration after supplying the relevant documents to the appellant.
(A) The relevant provisions of the Service Law were applied in this proceeding where an appointment made under a departmental competitive examination was challenged on the basis of procedural unfairness. The impugned order relied upon an expert opinion from a forensic science authority without providing the same to the concerned party, which was treated as a decisive factor in setting aside the administrative action.
(B) The principles of natural justice demand that a party must be given a reasonable opportunity to be heard, and any material document, especially one that forms the basis of an adverse finding, must be disclosed to the concerned party to enable a fair rebuttal.
Facts of the case:
The appellant was shortlisted based on merit in a departmental examination for a post, but her selection was cancelled after an inquiry into alleged unfair means in the examination. The crucial expert opinion that substantiated the allegations was not supplied to her, even though the same was admitted by the opposite party.
Findings of Court:
The Tribunal and the appellate authority failed to address the core ground of non-disclosure of the expert opinion, and the conclusion drawn from that document was held to be unsupported due to the denial of the document to the appellant.
Issues:
Whether an expert opinion relied upon for adverse action can be withheld from the party, and whether an order based on such undisclosed material can be sustained.
Ratio Decidendi:
An administrative order that proceeds on the basis of a material document, such as an expert forensic opinion, without providing it to the affected party violates principles of natural justice and renders the order unsustainable.
Result:
The impugned orders were set aside and the case was remanded for reconsideration after supplying the relevant documents to the appellant.
Order
This appeal by special leave is preferred against the order of the Central Administrative Tribunal in OA No. 367 of 1995 dated 12.1.1996.
2. The appellant volunteered in response to a notification issued by the Chief Personnel Officer, Southern Railway, dated 16.9.1991 for filling up the vacancies for the post of Assistant Personnel Officer (Group B) against 25% quota reserved for Limited Departmental Competitive Examination for the year 1990. No doubt, the appellant was successful in the preliminary examination and also in the main written examination. Based on that, she was called for viva voce. Interview was conducted and a panel of selected names was prepared for appointment to the post of Assistant Personnel Officer, but the appellant’s name did not find a place in the panel. The appellant preferred an application before the Tribunal on an earlier occasion in OA No. 1178 of 1994 praying for quashing the order of the General Manager dropping her name from the panel. That application was dismissed at the admission stage directing the appellant to go before the appellate authority and exhaust her alternative remedies. The appellate authority also confirmed the action of the General Manager in the dropping the name of the appellant from the panel.
3. The reason for dropping the name of the appellant from the selected panel was that she and also two others had adopted unfair means in the examination and after issuing show-cause notice and after verifying the unfair means practised by the appellant and others by taking the opinion of experts, namely, the experts in the Forensic Department of Tamil Nadu Government, it was held proved that the appellant had adopted unfair means in the written examination. Consequently, the decision to drop her name from the panel was taken.
4. Aggrieved by the action of the authorities in dropping her name from the panel and confirmed by the appellate authority, once again the appellant moved the Tribunal and inter alia the appellant raised the ground before the Tribunal that the document, namely, the opinion of the Forensic Department which was mainly relied on by the Department for coming to the conclusion that she had adopted unfair means in the written examination, was not supplied to her. That document was not supplied to the appellant was admitted by the respondent Union of India in the counter-affidavit filed before the Tribunal. It is also not denied that the appellant stood first in the test. In paras 14, 16 and 19 of the aforesaid counter-affidavit, the respondent had stated as follows:
“Regarding the grounds contained in para (d), it is submitted that the answer-books were sent for expert opinion to the Forensic Science Department of the Government of Tamil Nadu. They sought permission to open the answer-books before they could give a conclusive opinion and necessary permission was given in writing. As only expert opinion was obtained, the same was not shown in the show-cause notice. The allegations of the applicant that the papers were opened by the Vigilance Department and not by the Forensic Science Department is ill founded.
Regarding the ground contained in para (f), it is submitted that the report received from the Forensic Science Department that papers were replaced in the answer-books is an expert opinion from an independent agency. When the reply to the show-cause notice of the applicant was examined, the opinion of the Forensic Science Department was also taken into account. The opinion of Forensic Experts was not supplied to the applicant as it is only a supporting technical evidence for establishing the irregularity committed by the applicant.
The applicant’s statement that she had scored the highest marks in the written test is not relevant, especially when the irregularities committed by her have been established, her standing first in the written test has no relevance. The independent agency, i.e., the Department of Forensic Science of Government of Tamil Nadu had also proved that the answer-sheets had been replaced. Thus the findings of the Vigilance Department have ample support from the Forensic Science Department of Tamil Nadu.”
5. Shri P.S. Poti, learned Senior Counsel appearing for the appellant, reiterated the same ground before us to challenge the order of the Tribunal which has not dealt with this point but dismissed the appellant’s application on some other ground.
6. We are of the view that without going into the factual aspect of the case, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are liable to be set aside on the sole ground that the document based on which the conclusion came to be reached having not been supplied to the appellant, the decision cannot be sustained. The respondent ought to have given to the appellant a copy of the opinion of the Forensic Department based on which the impugned order came to be passed.
7. Accordingly, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are set aside and the matter is remanded back to the original authority and if the Department so desires, it can proceed further in the matter after supplying all the relevant documents to the appellant on which they propose to place reliance for taking further action against the appellant.
8. The appeal is, accordingly, allowed. No costs.
(C.R.) Appeal allowed.
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