Allowed

O.P.Trivedi v. Chairman Bhagirath Gramin Bank and Others

Allahabad HC7 Jul 2023WRIA/8256/1992

Case brief

AI extract

What is this about?

In a writ petition, the court quashed dismissal orders passed against a probationary junior clerk. Relying on Supreme Court precedents, the court held that failure to serve the enquiry report and show cause notice before passing a major penalty order violates principles of natural justice under Articles 14, 16, and 311 of the Constitution.

What did the court decide?

The writ petition allowed; impugned orders dated 11.2.1992 and 8.9.1992 quashed; petitioner directed to be reinstated forthwith.

O.P.Trivedi Vs Chairman Bhagirath Gramin Bank and… — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:44286

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Court No. - 5 [Reserved] [A.F.R.]

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Case :- WRIT - A No. - 8256 of 1992 Petitioner :- O.P.Trivedi

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Respondent :- Chairman Bhagirath Gramin Bank And Others Counsel for Petitioner :- M.K.Shukla,Ashish Mishra,Deo Raj Singh,K.C.Jauhari,Ramesh Kumar Srivastava,V.P. Misra,Vijai Kumar Counsel for Respondent :- A.K.Chaturvedi,C.S.C.

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Hon'ble Irshad Ali,J.

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Heard Shri Ramesh Kumar Srivastava, learned counsel for the petitioner and Shri A.K. Chaturvedi, learned Senior Advocate assisted by Shri Dharmendra Dixit, learned counsel for the respondents.

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By means of the present writ petition, the petitioner has prayed for the following reliefs:

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"(a) issue a writ, order or direction in the nature of mandamus directing the opposite parties to allow the petitioner to continue on the post of Junior Clerk in the Bhagirath Gramin Bank, District Sitapur

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(b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to give all the service benefits which have been given to the persons, junior to the petitioner;

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(c) issue a writ, order or direction in the nature of certiorari quashing and setting aside the impugned order of dismissal of the petitioner from services, dated 11.2.1992 and 8.9.1992 respectively, dismissing the service of the petitioner, contained in Annexure Nos.6 and 9 to the writ petition.

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(d) issue or pass any other writ, order or direction in the nature and manner which may be deemed just and expedient in the circumstances of the case; and

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(e) allow the writ petition with costs."

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Facts of the case are that on 28.12.1979 the petitioner was appointed for a period of thirty days for term appointment and thereafter

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he was appointed for sixty days and 90 days and the appointment letters to the said effect were issued for the said term. The appointment letters were issued to the petitioner from time to time in this regard. Thereafter, the interview of the petitioner was held on 10.1.1983 at 11.00a.m. and the petitioner was selected and appointed on the post of Junior Clerk on 10.2.1983 in the pay scale of Rs.354-550 plus dearness allowance and he was placed on probation for a period of twelve months.

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One Shri D.S. Mishra who was the Manager of the Branch of the Bank in which the petitioner was working as a Junior Clerk developed malafide intention towards the petitioner and as the petitioner, who was working under him, he harassed the petitioner a good number of time in different ways and also alleged that the petitioner is responsible for the embezzlement of the alleged amount, while the petitioner had no knowledge of time.

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The respondents did not give any show cause notice and the petitioner was also not given copy of the finding report of the enquiry report before passing the dismissal order and the petitioner was not also afforded any adequate opportunity prior to the issuance of the order dated 11.2.1991 dismissing the petitioner from his services. There is specific mention in the Bhagirath Gramin Bank Staff Service Regulation, 1980 that these regulations are not applicable to the employees who have been appointed temporarily or to the persons recruited on special contract.

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The petitioner also submitted his appeal on dated 25.3.1991 against the said dismissal order of the petitioner from service, which has also been passed without passing any reasoned and speaking order on 8.9.1982

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Learned counsel for the petitioner submitted that the respondents, in most illegal arbitrary and discriminatory manner, dismissed the petitioner from services, which is in violation of the provisions, contained in Articles 14 and 16 of the Constitution of India.

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Learned counsel for the petitioner next submitted that the Staff Service Regulation, 1980 could not made available for application to the petitioner who was employed temporarily or on special contract.

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Learned counsel for the petitioner next submitted that there is specific provision under Staff Service Regulation, 1980 as not to apply such regulations on the employees, who have been employed temporarily on daily wages or recruited on special contract.

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Learned counsel for the petitioner next submitted that there is specific provision under Staff Service Regulation, 1980 as not to apply such regulations on the employees who have been employed temporarily on daily wages or recruited on special contract.

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Learned counsel for the petitioner next submitted that the petitioner was appointed temporarily and he was on special contract, when the said amount, as alleged by the opposite parties, was not shown in the record.

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Learned counsel for the petitioner next submitted that the respondents did not give the petitioner documents, inspite of his asking for the same before passing order, dismissing the services of the petitioner. He next submitted that the petitioner was not given any show cause notice before passing of his dismissal order.

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Learned counsel for the petitioner next submitted that the respondents did not supply copy of the finding or enquiry report, before passing of the impugned dismissal order. He next submitted that the opposite parties did not give the attendance register for the year 1981, 1982 to show that neither he was in employment nor he was on duty, when as stated by the respondents, the alleged discrepancy and alleged embezzlement have been committed.

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Learned counsel for the petitioner next submitted that not giving the inquiry report amounts to cause prejudice to the petitioner and same is also considered by the punishing authority hence the petitioner is entitled the copy of the inquiry report.

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Learned counsel for the petitioner next submitted that if inquiry report is given to the petitioner then result would be different and not giving inquiry report is caused prejudiced to the petitioner. He next submitted that non-giving the inquiry report caused prejudiced for nonmaking the representation to the punishing authority.

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Learned counsel for the petitioner next submitted that the inquiry officer has not considered the reply of charge-sheet and defence brief of the petitioner, hence the report is perverse in nature. He next submitted that the punishment order is not speaking because reply to the charge sheet and defence brief of the petitioner has not considered and has been passed against the principle of natural justice.

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In support of his submissions, learned counsel for the petitioner relied upon the following judgments:

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(i) State of Uttaranchal v. Kharak Singh reported in 2008 Vol. 8 SCC Page-236

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(ii) Chamoli District Co-operative Bank v. Raghunath Singh Rana reported in AIR 2016, Supreme Court Page 2510.

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(iii) Om Prakash Gond v. State of U.P. reported in 2019 Vol.4 ADJ Page 386

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(iv) Vikalp Kumar v. State of U.P. reported in 2019 (11) ADJ Page 267.

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On the other hand, learned counsel for the respondents submitted that while the petitioner was posted in Neri Kalan Branch of the Bank, some serious complaints were received by the Chairman and as such, the petitioner was placed under suspension on 8.5.1984 which was followed by a charge-sheet dated 9.7.1994 indicating therein the charges of embezzlement of Bank’s money, breach of discipline and indolence and intentional negligence in discharge of duties.

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Learned counsel for the respondents next submitted that the petitioner was never pressurized by any Officer of the Bank to embezzle any amount. No person of common prudence will ever endanger his service by following another’s instructions unless and until his self-motive is malafide.

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Learned counsel for the respndents next submitted that the chargesheet dated 2.1.1990 was issued to the petitioner containing the charges of embezzlement etc. and subsequently the petitioner was placed under suspension on 3.1.1990.

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Learned counsel for the respondents next submitted that what prejudice has been caused to the petitioner by non-supply of the inquiry report to him. If no prejudice could be indicated then the punishment order will not be set aside. In the present case, the petitioner already availed the opportunity of assiling the findings of the inquiry report dated 10.2.1990 while preferring the appeal dated 25.3.1991 and has not earlier assailed the said findings in any manner before this Court so as to demonstrate that prejudice has been caused to him. Thus, the punishment order dated 11.2.1991 is not bad and illegal.

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Learned counsel for the respondents next submitted that the then Manager of the Brahmawali Branch, Sitapur hadd connivance and both of them misappropriated the bank money and defrauded the Bank.

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Learned counsel for the respondents next submitted that no opportunity of personal hearing is required under the provisions of law after the submission of the inquiry report dated 10.12.1990 and before the dismissal order dated 11.2.1991. Learned counsel for the respondents next submitted that copy of the inquiry report dated 10.12.1990 was served upon the petitioner through dismissal order dated 11.2.1991.

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I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law-reports cited by learned counsel for the petitioners.

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To resolve controversy involved in the present writ petition, operative portion of the judgments relied upon by learned counsel for the petitioner is as under:

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(i) State of Uttaranchal v. Kharak Singh (supra):

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10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. v. The Workmen and Anr. are relevant:

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"... ... In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct of Malak Ram. Mr. Kolah contends that if the Manager and the other officers saw Malak Ram committing the act of misconduct, that itself would not disqualify them from holding the domestic enquiry. We are not prepared to accept this argument. If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye- witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an officer claims that he had himself seen the misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. ... .....

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..... ..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross- examined at the outset constitutes another infirmity in this enquiry."

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15. From the above decisions, the following principles would emerge:

(i)……………..

(ii)…………

(iii)………...

(iv) On receipt of the enquiry report, before further, it is incumbent on the part of the disciplinary/ punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.

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(ii) Chamoli District Co-operative Bank (supra):

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18. It is also relevant to note that after submission of reply dated 04.02.1993, Disciplinary Authority issued a showcause notice on 04.05.1993 asking the employee/respondent No.1 to submit his reply. When the Inquiry Officer was appointed, conducting of the inquiry was mandatory and without conducting of an inquiry and without any inquiry report having been served on the employee/respondent No.1, Disciplinary Authority could not have proceeded to impose any punishment. The compliance of principles of natural justice by the appellant-Bank is not a mere formality, more so

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when the statutory provisions specifically provides that disciplinary proceedings shall be conducted with due observations of the principles of natural justice.

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19. The compliance of natural justice in domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there are no specific statutory rule requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen reported in (1964) 3 SCR 616 has laid down following:-

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“... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined – ordinarily in the presence of the employee – in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the inquiry officer records his findings with reasons for the same in his report.”

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20. The Apex Court again in State Bank of India Vs. R.K. Jain and Ors., reported in (1972) 4 SCC 304 held that if an inquiry is vitiated by violation of principles of natural justice or if no reasonable opportunity was provided to the delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice. In paragraph 23, the following was laid down:-

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“......As emphasised by this Court in Ananda Bazar Patrika (P) Ltd. v. Its Workmen, (1964) 3 SCR 601, the termination of an employee's service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice......”

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21. The Apex Court in State of Uttranchal & Ors. Vs. Kharak Singh reported in (2008) 8 SCC 236 had occasion to examine various contours of natural justice which need to be specified in a departmental inquiry. The Apex Court noticed earlier judgments where principles were laid down as to how inquiry is to be conducted. It is useful to refer paragraphs 9, 10, 11, 12, 13 and 15, which are to the following effect:-

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“…..9. Before analyzing the correctness of the above submissions, it is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.

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10. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. v. The Workmen and Anr. [1964] 3 SCR 652 are relevant:

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..... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation

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about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross- examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross- examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry."

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11) In ECIL v. B. Karunkar (1993) 4 SCC 727, it was held:

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"(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.

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While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the

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opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges.

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* * *

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Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.

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Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary

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authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.”

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15. From the above decisions, the following principles would emerge:

(i)……………..

(ii)…………

(iii)………...

(iii) Om Prakash Gond (supra):-

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6. Not only the above, an ex-parte enquiry was concluded against the petitioner on 26.02.2001, as the copy of the original enquiry report was produced before this Court by the learned Additional Chief Standing Counsel. Since the enquiry report is dated 26.07.2001 and it has been produced before the Disciplinary Authority later on, the Disciplinary Authority passed an order of dismissal dated 29.03.2001 within a short span of time without providing a show cause notice to the petitioner seeking explanation as is mandatory under law.

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13. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and the Hon'ble Apex Court has culled out certain principles as under:

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"i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.

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ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer,

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during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.

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(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.

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(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."

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15. Further, the enquiry report dated 26.03.2001 was submitted before the Disciplinary Authority and the Disciplinary Authority passed the punishment order dated 29.03.2001 without providing the second opportunity of hearing to the petitioner strictly in accordance with law as no show cause notice along with enquiry report was served to the petitioner before passing the punishment order.

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16. Looking into the entire facts and circumstances of the issue, I am of the considered view that the impugned punishment order dated 29.03.2001 has been passed without following the due procedure of law. To be more precised, the punishment order has been passed without conducting the departmental enquiry as per settled norms and this is absolute ex-parte departmental enquiry, therefore, it is liable to be quashed.

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(iv) Vikalp Kumar (supra):-

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7. Learned counsel for the petitioner has submitted that the aforesaid impugned order has been passed in violation of principles of natural justice inasmuch as before passing the order impugned, no opportunity of hearing of any kind whatsoever was afforded to the petitioner. He has not been provided any relevant documents including the copy of inquiry report, and he has also not been afforded an opportunity of oral hearing, therefore, he submitted that the impugned order is bad and is liable to be quashed. It was further contended that there is no bar against pursuing a

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degree course and a certificate course, simultaneously, in view of the resolution of University Grants Commission, New Delhi. He has also submitted that the petitioner has not played fraud or misrepresented before the respondents.

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10. The question that needs to be answered first as to whether the disciplinary authority was justified in passing the impugned order of removal of petitioner from service without supplying the copy of the enquiry report and further whether the procedure prescribed under the Rules for holding departmental inquiry in respect of imposition of major penalty have been followed or not.

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13. The enquiry officer submitted his report to the Disciplinary authority on 10.9.2018. The Disciplinary Authority i.e. District Basic Education Officer agreed with the findings of the enquiry report and without supplying the copy of the same and without issuing any show cause against the proposed punishment, passed the order dated 10.9.2018 terminating his services. Failure to supply copy of the inquiry report, before the disciplinary authority, takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a clear breach of the principles of natural justice.

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14. The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. It is a basic requirement of rules of natural justice that an employee should be given a reasonable opportunity of being heard in any proceeding which may culminate in a major punishment being imposed on the employee. Thus, the disciplinary proceedings stood vitiated.

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15. The Hon'ble Apex Court in the case of Union of India & Ors. Vs. Mohd. Ramzan Khan, (1991) 1 SCC 588, has held that it is mandatory to provide enquiry report to the delinquent in order to provide an opportunity to submit reply to the same. In case the punishment order imposing major penalty has been passed without providing enquiry report to the delinquent employee the said punishment order is not sustainable in the eyes of law. The relevant paragraphs read as under:-

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"14. This Court in Mazharul Islam Hashmi v. State of U.P. [(1979) 4 SCC 537 : 1980 SCC (L&S) 54] pointed out:

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"Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural justice will have to be proved."

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15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Fortysecond Amendment has not brought about any change in this position.

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17. There have been several decisions in different High Courts which, following the Forty-second Amendment,

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have taken the view that it is no longer necessary to furnish a copy of the inquiry report to delinquent officers. Even on some occasions this Court has taken that view. Since we have reached a different conclusion the judgments in the different High Courts taking the contrary view must be taken to be no longer laying down good law. We have not been shown any decision of a coordinate or a larger bench of this Court taking this view. Therefore, the conclusion to the contrary reached by any two-Judge bench in this Court will also no longer be taken to be laying down good law, but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.

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18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and nonfurnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."

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17. The impugned order would also reflect that it proceeds on the charge that by appearing in two examinations simultaneously for the same year, petitioner has played fraud and lowered the image of the respondents-department. Further the petitioner also acted in violation of the relevant Service Conduct Rules.

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18. The reasoning given by the District Basic Education Officer is clearly unsustainable in as much as no such provision governing the petitioner's service has been brought to the notice of the Court, which may prohibit any such employee to undergo in the two examinations simultaneously. Infact the petitioner has relied upon the resolution of the University Grants Commission, New Delhi dated 28.12.2012, whereby a decision was taken that "a student pursuing a degree programme under regular mode may be allowed to pursue a maximum of one certificate/diploma/ advanced diploma/ PG Diploma programme simultaneously either in regular or open and distance mode in the same university or from other institutions" to contend that a student may pursue a degree course along with a certificate course.

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21. The law laid by the Hon'ble Apex Court cited in the preceding paragraph is fully applicable to the facts and circumstances of the present case."

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On bare perusal of the above-extracted judgments, it is crystal clear that disciplinary proceeding breaks into two stages. The first stage ends, when the disciplinary authority arrives at its conclusion on the basis of evidence, Inquiry Officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decide to impose penalty on the basis of its conclusion. If the disciplinary authority decides to drop the disciplinary proceeding, the second stage is not even reached.

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It is also crystal clear that while the right to represent against the finding in the report is part of reasonable opportunity during the first stage of the inquiry before the disciplinary authority takes into consideration the finding in the report. The first right is the right to prove innocence. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the inquiry officer. On receipt of Inquiry report, it is incumbent on the part of punishing authority to supply a copy of the inquiry report.

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Perusal of the record reveals that the petitioner was selected and appointed on the post of Junior Clerk on 10.2.1983 on probation for a period of 12 months. Allegation of embezzlement of certain amount has been made against the petitioner. Thereafter, the petitioner placed under suspension vide order dated 8.5.1984 which was followed by a chargesheet dated 9.7.1994 indicating therein the certain the charges of embezzlement of Bank’s money, breach of discipline and indolence and intentional negligence in discharge of duties. Vide order dated 11.2.1991, the services of the petitioner has been dismissed which has been approved/ upheld by the disciplinary authority.

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Perusal of the record also reveals that prior to passing of the dismissal order, neither the petitioner has been given any show cause notice nor finding report of the enquiry report has been given. The petitioner has also not been afforded any adequate opportunity prior to the issuance of the order dated 11.2.1991 dismissing the petitioner from services. The enquiry report dated 10.12.1990 was submitted before the disciplinary authority and the disciplinary authority passed the punishment order dated 11.2.1991 without providing the second opportunity of hearing to the petitioner stricutly in in accordance with law as no show cause notice along with enquiry report was served to the petitioner before passing the punishment order. In this view of the matter, the impugned orders have been passed without following the due procedure of law and

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without conducting the departmental as per the settled norms. The lawreports cited by the learned counsel for the parties are fully applicable to the present facts and circumstances of the case.

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It has been repeated observed by the Hon’ble Supreme Court as well as this Court that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of enquiry officer’s report before the disciplinary authority takes its decision on the charge, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.

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It has also been observed that on receipt of enquiry report, before further, it is incumbent on the part of the disciplinary/ punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his view, if any.

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The object of rules of natural justice is to ensure that an employee is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/ removal from service. It is a basic requirement of rules of natural justice that an employee should be given a reasonable opportunity of being heard in any proceeding which may culminate in a major punishment being imposed on the employee. Thus the disciplinary proceeding stood vitiated.

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Considering in totalities of facts and circumstances as well as lawreport cited by learned counsel for the petitioner, this Court is of the considered opinion that it is mandatory to provide enquiry report to the delinquent in order to provide an opportunity to submit reply to the same. In case the punishment order imposing major penalty has been passed without providing enquiry report to the delinquent employee the said punishment order is not sustainable in the eyes of law. Therefore, from any angle the matter is to be looked into, the impugned order passed by the respondents are null and void, apart from the fact that they are in violation of the principles of natural justice.

¶128

Accordingly, the writ petition is allowed . The orders dated 11.2.1992 and 8.9.1992 are hereby quashed.

¶129

¶130

It is however made clear that since this order is being passed for the reason that the departmental enquiry has not been conducted and concluded against the petitioner strictly in accordance with law, therefore, the authority concerned is directed to pass appropriate order in favour of the petitioner reinstating him in service forthwith and is at liberty to conduct the departmental enquiry, if it is so desired, but strictly in accordance with law from the stage of issuance of the enquiry report. The petitioner would be provided a copy of the enquiry report and he would be afforded an opportunity to submit his explanation to the show cause notice which may be given to the petitioner along with copy of the enquiry report, if any, within fifteen days and the petitioner shall file his explanation to the show cause notice within the maximum period of one month thereafter. The authority concerned, shall thereafter, pass final order and shall intimate the petitioner forthwith.

¶131

Order Date :- 07/07/2023 GK Sinha

¶132

[Irshad Ali, J.]

¶133

Digitally signed by :- GAUTAM KUMAR SINHA High Court of Judicature at Allahabad, Lucknow Bench

O.P.Trivedi v. Chairman Bhagirath Gramin Bank and Others

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O.P.Trivedi v. Chairman Bhagirath Gramin Bank and Others

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