# Lav Nigam v. Chairman and Managing Director, ITI Ltd. and others

- **Citation:** (2004) 1 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-17
- **Case number:** Civil Misc. Writ Petition No. 6121 of 1999
- **Bench:** Yatindra Singh, V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lav-nigam-v-chairman-and-managing-director-iti-ltd-and-others-40359
- **Pages:** 8

## Headnote

Constitution of India Article 226-Enquiry
officer exonerating charged officer from
all
charge-disciplinary
authority
disagreeing with enquiry report-show
cause
notice
giving
reasons
for
disagreeing with enquiry report and
giving opportunity of hearing, Sufficient
Compliance
of
principles
of
natural
justice-No necessity to give two separate
notices-not required.

Held- Para 18 & 23

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.

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.
Case law discussed:
(1998) 7 SCC 84
1998 (5) JT 548
AIR 1999 SC 3734
(1999) 7 SCC 739
1999 (6) JT 62
(1991) 2 SCC 716
AIR 1987 SC 593
1995 (Supp)1 SCC 434
AIR 1970 SC 150
(1987) AC 625 (702)
(1989) 2 All. E.R. 359 (A.LP 367)
1970 (2) All. E.R. 528
1964 (1) All. E.R.109
1967 (2) All.E.R. 152

## Text

1 All] Lav Nigam V. Chairman and Managing Director, ITI Ltd. and others 315
22. To sum up the discussion, I am
of the view that present writ petitions
have no force and are accordingly
dismissed. The interim order, if any, stand
vacated. However, on the facts and
circumstances of the case, there will be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2004

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No. 6121 of 1999

Lav Nigam

...Petitioner
Versus
Chairman and Managing Director, ITI
Limited and others
 ...Respondents

Counsel for the Petitioner:
Sri H.S. Nigam
Sri Ashok Singh
Sri Shashi Nandan
Sri V.B. Upadhyay

Counsel for the Respondent:
Sri J.N. Tewari
Sri SN Tripathi

Constitution of India Article 226-Enquiry
officer exonerating charged officer from
all
charge-disciplinary
authority
disagreeing with enquiry report-show
cause
notice
giving
reasons
for
disagreeing with enquiry report and
giving opportunity of hearing, Sufficient
Compliance
of
principles
of
natural
justice-No necessity to give two separate
notices-not required.

Held- Para 18 & 23

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.

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.
Case law discussed:
(1998) 7 SCC 84
1998 (5) JT 548
AIR 1999 SC 3734
(1999) 7 SCC 739
1999 (6) JT 62
(1991) 2 SCC 716
AIR 1987 SC 593
1995 (Supp)1 SCC 434
AIR 1970 SC 150
(1987) AC 625 (702)
(1989) 2 All. E.R. 359 (A.LP 367)
1970 (2) All. E.R. 528
1964 (1) All. E.R.109
1967 (2) All.E.R. 152

(Delivered by Hon'ble 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
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316 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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 endnote1) 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:

•
The disciplinary authority ought to
have given two notices to the
petitioner: first one should have been
tentative notice alongwith reasons of
disagreement.

•
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.

•
The aforementioned two notices can
not be combined together.

•
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
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1 All] Lav Nigam V. Chairman and Managing Director, ITI Ltd. and others 317
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
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318 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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
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1 All] Lav Nigam V. Chairman and Managing Director, ITI Ltd. and others 319
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).

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320 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
'[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.
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1 All] Lav Nigam V. Chairman and Managing Director, ITI Ltd. and others 321
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.
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322 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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. N247 (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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2003

BEFORE
THE HON'BLE R.K. DASH, J.
THE HON'BLE ONKARESHAR BHATT, J.

Civil Misc. Writ Petition No. 35569 of 2003

Mahesh Chandra and others...Petitioners
Versus
State of U.P and others ...Respondents

Counsel for the Petitioners:
Sri B.B. Paul

Counsel for the Respondents:
Sri R.K. Awasthi
S.C

Land Acquisition Act (As amended by
U.P. Amendment Act XXII of 1954)-
Section 4,6,5A and 17- Acquisition of
Land under position taken by StateJurisdiction of Civil Court-Bar of-Civil
Suit Challenging land acquisition-Decree
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