Notice, Disclosure and the Materials Relied On
Chapter Seventy-Nine
Syllabus topic 5, "Procedural fairness"
Pages 236 to 238 of 430
In one line
A person cannot answer a case he has not been shown, so an authority which decides on material it kept back has not heard him at all.
In the wording a student can write in an exam: a fair hearing requires that the person affected be given notice which states the allegation and the action proposed with sufficient particularity, and that he be furnished with the material on which the authority proposes to act, including any report of an enquiry officer, before the decision is taken.
What a notice must contain
The allegation, with particulars. Dates, transactions, names. A charge that the officer was guilty of misconduct, without more, is not a charge.
The action proposed. So that the person knows what is at stake and can address the consequence as well as the allegation.
The material relied on, or an offer to inspect it.
A reasonable time to reply, measured by the complexity of the allegation and the volume of the material, not by administrative convenience.
Where and to whom the reply is to be made.
Disclosure: the leading case
Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.
Facts. A group of matters raised by the Union, public sector corporations and banks turned on whether a delinquent employee is entitled to a copy of the enquiry officer's report before the disciplinary authority acts on it. The Forty-second Amendment had removed the second show cause notice on the proposed penalty from Article 311(2), and two benches of three judges had taken different views of what survived.
Held. A five-judge bench held that where the enquiry officer is someone other than the disciplinary authority, the report is material on which the disciplinary authority acts, so supplying it is part of the reasonable opportunity guaranteed by Article 311(2) and of natural justice. The report must therefore be furnished to the employee, whether or not the statute or the rules require it, before the disciplinary authority takes its decision. Non-supply does not, however, invalidate the order automatically: the court or tribunal must consider whether the employee has been prejudiced, and where no prejudice is shown the order stands.
Why it matters here. It states the disclosure rule and the prejudice qualification together, and it is the case most often cited in Indian service litigation.
What must be disclosed
Any report on which the decision will rest.
Any document, statement or inspection note relied on.
Any material collected behind the back of the person, even if the authority thinks it minor.
Any change in the case, so that a person answering one allegation is not condemned on another.
What need not be disclosed
Purely internal notes which are not the basis of the decision, though the line is thin and courts lean towards disclosure.
Notice, Disclosure and the Materials Relied On
Material whose disclosure would harm the public interest, on a properly made claim of privilege, and even then the material should ordinarily be shown to the court.
Sources whose identity is protected by statute, as with some informant provisions, where the substance must nevertheless be put to the person.
The connection with Article 22(5)
In preventive detention the same principle has a constitutional form. Article 22(5) requires the grounds of detention to be communicated as soon as may be and the earliest opportunity of making a representation to be afforded, and the courts have held that grounds without the documents referred to in them are no grounds, because the right to represent becomes illusory.
A worked example
A hospital dismisses a nurse after an enquiry. The enquiry officer's report, which finds her guilty on two of four charges, is not given to her. The disciplinary authority dismisses her, relying on the report and also on a complaint letter from a patient's family which was never put to her.
Two breaches. The report is material on which the authority acted, so it should have been furnished, which is Karunakar. The complaint letter is material collected behind her back and used against her, so its non-disclosure is fatal. Prejudice is obvious in the second case: she might have shown that she was not on duty that day. The dismissal is set aside, and the usual relief is that the enquiry is remitted from the stage of the defect.
Distinctions that carry marks
| Non-supply of the enquiry report | Non-disclosure of material collected behind the back | |
|---|---|---|
| Rule | Must be furnished before the disciplinary authority decides: Karunakar | Must be put to the person before it is used |
| Effect | Not automatically void; prejudice must be considered | Ordinarily fatal, because the person could not answer it at all |
| Relief | Enquiry remitted from that stage | Order quashed, enquiry ordinarily remitted |
What this does NOT mean
It does not mean every document in the file must be given. Only what is relied on.
It does not mean a defective notice can never be cured. A fuller notice may be issued and the process begun again.
It does not mean prejudice is presumed. Karunakar requires it to be considered, and a person who admits the facts will find prejudice hard to show.
Quick revision
A notice must state the allegation with particulars, the action proposed, the material relied on and a reasonable time. Disclosure is part of the hearing: the enquiry officer's report must be furnished before the disciplinary authority decides, whether or not the rules require it, and non-supply is tested by prejudice, which is Karunakar. Material collected behind the back and used is ordinarily fatal. Article 22(5) applies the same principle to preventive detention, where grounds without the documents referred to are no grounds.
Notice, Disclosure and the Materials Relied On
Test yourself
1. Why must the enquiry officer's report be supplied? Because it is the material on which the disciplinary authority acts, so supplying it is part of the reasonable opportunity and of natural justice: Karunakar.
2. Does non-supply automatically invalidate the order? No. The court must consider whether prejudice was caused, and where none is shown the order stands.
3. What is the position of material collected behind the person's back? It cannot be used unless it is put to him, because otherwise he has no opportunity to answer the case actually being decided.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.