# B.S.S. Public School, Raebareli & Ors v. U.O.I. & Ors

- **Citation:** (2024) 4 ILRA 1409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-25
- **Case number:** Writ -C No. 3070 of 2024
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-s-s-public-school-raebareli-ors-v-u-o-i-ors-51813
- **Pages:** 16

## Headnote

A.S.G.I., C.S.C., Krishna Lal Yadav, Pankaj Patel,
Shashank Bhasin

Opportunity of Hearing-School was granted
affiliation with CBSE to run secondary level
classes and senior secondary level classes -last
extension of provisional affiliation was granted
from 01.04.2020 till 31.03.2028 -the complaints
made to the District Magistrate- wherein the
enquiry committee was constituted-and after
receiving the enquiry report, the same was
referred to the CBSE-The CBSE conducted an
internal enquiry while calling the report from the
petitioners' Institution - enquiry was concluded
and a show cause notice was issued -
admittedly could not be responded by the
petitioners' Institution due to some inadvertence
on the part of the personnel of the Institution -
impugned order passed-deaffiliation- it was
incumbent upon the authority which has issued
the notice to accord 30 days time, and that too
is violated -.settled proposition of law is that
affected person by administrative/judicial/quasijudicial action, must be heard, before the
decision is taken-impugned order quashed.

Writ Petition allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,726 of 56,041. This is a partial read: ask again with offset=39726 for what follows._

4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1409
repeal of the Act of 1950 shall not affect
any right acquired or accrued.

17. The case set up by the petitioner,
in the instant case, is that in terms of Section
122-B(4-F) of the Act of 1950, he had
acquired the rights over part of Gata No.
458/0.2960 Hect.

18. Upon conjoint reading of
aforesaid, this Court is of the view that plea
based upon Section 122-B(4-F) of the Act of
1950 was available to the petitioner in the
proceedings instituted under Section 67 of the
Code of 2006 and he has rightly took the
same.

19. Now the question is that as to
whether the plea of the petitioner based upon
Section 122-B(4-F) of the Act of 1950 has
rightly been considered by the respondent
nos.2 & 3 and for coming to the conclusion
on this aspect, this Court considered
observations made in the impugned orders
dated 05.02.2024 and 15.07.2023, quoted
above, in the light of settled law on the
benefit provided under Section 122-B(4-F) of
the Act of 1950 to an occupant of Gaon
Sabha land and upon due consideration, this
Court is of the opinion that in considering and
rejecting the plea of the petitioner based upon
Section 122-B(4-F) of the Act of 1950, the
respondent nos.2 and 3 erred in law and facts
both. It is for the following reasons:

(i) the respondent nos.2 and 3 have
not considered the effect of Section 122-B(4F) of the Act of 1950 and Section 230 of the
Code of 2006.
(ii) the respondent nos.2 and 3 have
not recorded any finding after considering the
period of possession pleaded by the petitioner
and cut off date provided under the relevant
provisions i.e. Section 122-B(4-F) of the Act
of 1950.
(iii) the respondent nos.2 and 3 have
not recorded the finding after considering the
area i.e. 1.26 Hectares (3.125 acres) indicated
under Section 122-B(4-F) of the Act of 1950
and the area of the land of which the
petitioner and his wife are Bhumidhar with
transferrable rights.
(iv) the respondent nos.2 and 3 have
not recorded the findings, as required, on the
issue as to whether the petitioner fulfills the
criteria to seek benefit of Section 122-B(4-F)
of the Act of 1950.

20. For the reasons aforesaid, this
Court is of the view that the impugned orders
dated 05.02.2024 and 15.07.2023 passed by
respondent nos.2 and 3, respectively, are
liable to be set-aside.

21. Accordingly, the petition is
allowed.
The
impugned
orders
dated
05.02.2024 and 15.07.2023 passed by
respondent nos.2 and 3, respectively, are
hereby set-aside. The matter is remanded
back to respondent no.3-Tehsildar (Nyayik),
Mandal-Ayodhya, District- Barababki, TehsilNawabganj to decide the matter afresh, most
expeditiously, strictly in accordance with law.
----------
(2024) 4 ILRA 1409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ -C No. 3070 of 2024

B.S.S. Public School, Raebareli & Ors.
 ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Kumar Chaudhary, Ayush Chaudhary
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.S.G.I., C.S.C., Krishna Lal Yadav, Pankaj Patel,
Shashank Bhasin

Opportunity of Hearing-School was granted
affiliation with CBSE to run secondary level
classes and senior secondary level classes -last
extension of provisional affiliation was granted
from 01.04.2020 till 31.03.2028 -the complaints
made to the District Magistrate- wherein the
enquiry committee was constituted-and after
receiving the enquiry report, the same was
referred to the CBSE-The CBSE conducted an
internal enquiry while calling the report from the
petitioners' Institution - enquiry was concluded
and a show cause notice was issued -
admittedly could not be responded by the
petitioners' Institution due to some inadvertence
on the part of the personnel of the Institution -
impugned order passed-deaffiliation- it was
incumbent upon the authority which has issued
the notice to accord 30 days time, and that too
is violated -.settled proposition of law is that
affected person by administrative/judicial/quasijudicial action, must be heard, before the
decision is taken-impugned order quashed.

Writ Petition allowed. (E-9)

List of Cases cited:

1. Managing Director, ECIL Hyderabad and
others Vs. B. Karunakar and others, 1993 (4)
SCC 727

2. Union of India and others Vs. R.P. Singh,
(2014) 7 SCC 340

3. Himachal Pradesh State Electricity Board
Limited Vs. Mahesh Dahiya, 2017 (1) SCC 768

4. State Bank of India and others Vs. Rajesh
Agarwal and others, (2023)6SCC 1

5. Union of India and others Vs. Mohd. Ramzan
Khan, 1991 (1) SCC 588

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri S.C. Mishra, learned
Senior Counsel assisted by Sri Ayush
Chaudhary,
learned
counsel
for
the
petitioners, Sri Shailendra Kumar Singh,
learned Chief Standing Counsel and Sri
Vivek Shukla, learned Additional Chief
Standing Counsel for the opposite party
no.5, Sri Krishna Lal Yadav, learned
counsel for the opposite party no.1 and Sri
Shashank Bhasin, learned counsel for the
opposite party nos. 2 to 4.

2. By means of the present writ
petition, the petitioners have assailed the
order
dated
26.02.2024
bearing
no.
CBSE/Aff. No. 2130934/E-35280/2024
whereby, the affiliation of the petitioners'
school has been withdrawn, while holding
it that the petitioners' school is found
responsible for violation of the provisions
envisaged under clause 12.2.1, 12.2.11 and
12.2.12 of the affiliation bye-laws.

3. The factual matrix of the case
is that the petitioner no. 1, i.e., B.S.S.
Public
School,
Raebareli
(hereinafter
referred to as an 'Institution'), is an
academic institution, established in the
year 1987 and is being run by the
petitioner no. 2 society, which is a
registered
society
under
Societies
Registration Act, 1860. The school was
granted affiliation with Central Board of
Secodary Education (hereinafter, referred
to as 'CBSE') to run secondary level
classes i.e. IXth and Xth on 27.03.2008,
for three years, which was extended from
time to time and was further granted
affiliation to run senior secondary level
classes i.e. class 11th and 12th, which too
was extended subsequently and the last
extension of provisional affiliation was
granted from 01.04.2020 till 31.03.2028,
vide the affiliation letter dated 04.05.2022.
Later on, vide the impugned order dated
26.02.2024, the petitioners' Institution is
de-affiliated, which is under challenge.
4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1411
4. The contention of learned
counsel for the petitioners is that all of
sudden vide order dated 26.02.2024, the
affiliation granted to the institution of the
petitioners, is withdrawn by CBSE while
mentioning some inquiry report, but the
inquiry report was never served upon the
petitioners by the CBSE while issuing
show cause notice or prior to passing the
impugned order.

5. Further contention of learned
counsel for the petitioners is that, at the
time of nation-wide lockdown, due to
Covid-19
Pandemic,
the
educational
activities in schools were heavily affected
and the CBSE canceled the class 12th
examination
vide
notifications
dated
01.06.2021 and 17.06.2021 and for the
purpose of assessment of class 12th, the
result of Unit Test/Mid Term exam/preboard examination, conducted by the
respective schools in class 12th and 11th
alongwith the result of performance in the
best three subjects out of main five subjects
in class 10th board examination, was
proposed to be calculated.

6. He pointed out that the
petitioners' institution also evaluated the
marks of all the students of class 12th for
academic year 2021 and performance of
total 140 students were scrutinized out of
which 11 students failed, whereas, 23
students got compartments. Thereafter, one
Santosh Kumar Sonkar who was aggrieved
that his son namely, Ritesh Sonkar became
failed in class 12th, came into the school
and started chaos, by hurling abuses upon
the teachers and staff, whereafter, an
information was given to the educational
authorities, but he further kept on doing so
in the subsequent days, while protesting in
the
school
premises
to
disrupt
the
functioning of the school administration
and therefore, considering the future of the
students, the manager of the petitioners'
school by means of an e-mail requested the
CBSE to re-assess and increase of the
marks of the students, who were failed or is
to appear in the compartment exams.

7. He further submits that Sri
Sonkar also made a false complaint to the
District Magistrate, whereafter, the District
Magistrate i.e. opposite party no. 5
constituted a committee to conduct an
inquiry in the alleged irregularities and
after a sham inquiry, a report is submitted
on
04.08.2021,
itself,
wherein,
the
petitioners' institution was not associated
and the inquiry report was directly sent to
the CBSE.

8. He argued that the impugned deaffiliation order dated 26.2.2024 has been
passed in most mechanical and clandestine
manner while blindly relying on the
enquiry report submitted by the opposite
party no. 5 based upon false and misleading
facts
and
the
petitioners
were
not
associated in the alleged enquiry. He added
that though a show cause notice is said to
have been issued while sending it on the
email of school website but the enquiry
report
on
the
basis
of
which
the
proceedings of de-affiliation is started, was
not enclosed therewith. He has drawn
attention of this Court towards Annexure
No.24 of the writ petition, which is a show
cause
notice
dated
12.10.2023
and
submitted that on the second page of the
notice, the report of the Enquiry Committee
is allegedly observed but, in fact, the same
is not the enquiry report which was
submitted by the enquiry committee
constituted by the CBSC and, in this
regard, he pointed out the enquiry report
appended as Annexure No.10 along with
the writ petition, and added that from
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of the observation of alleged
enquiry report in the show cause notice, the
same is verbatim the English Translation of
the conclusion of the enquiry report dated
4.8.2021 and, thus, this cannot be said that
the enquiry report submitted by the enquiry
committee by CBSE is quoted in the show
cause notice.

9. Further contented that ChapterV of the affiliation bye laws speaks about
withdrawal of the regular affiliation. Clause
18 of Chapter-V is quoted hereinunder:-

"(1) Within the general frame work
of Section 17 of this chapter, the Board
reserves the right to withdraw regular
affiliation in the even of a school failing to
observe affiliation norms and rules and/or
the pass percentage in most of the subjects
goes lower than the pass percentage of
each subject at the examinations of the
Board, continuously for three years. The
Board will ask such a school to rectify the
deficiencies and given adequate time (6
months to one year). If the school fails to
show improvement, it will lose the status of
a regular affiliation school and will revert
to a provisonally affiliated school status."

10. From bare perusal of the
provisions of Clause 18 of Chapter-V, it is
evident that in the event, where the pass
parcentage in most of the subjects goes
lower than the pass percentage of each
subject at the examinations of the Board,
continuously for three years, the Board will
ask such a school to rectify the deficiencies
while affording adequate time of six
months to one year and if even then such
institution fails to show improvement, it
will lose status of a regular affiliation
school. So far as the present matter is
concerned, in Covid Pandemic, in one
academic session, there were only 9
students,
who
were
failed,
though
repeatedly, it has wrongly been stated that
out of 140, 50 students were failed. Adding
his arguments, he submits that so far as the
Committee constituted by the District
Magistrate
is
concerned,
without
considering the actual fact and evidence,
the Committee submitted its report and,
thereafter also, the opposite party no.4 after
receiving
the
letter
of
the
District
Magistrate,
has
constituted
enquiry
committee which also submitted its report
but the said enquiry report was never
served upon the petitioners' Institution
while sending the show cause notice.

11. Along with the above, he has
also shown certain other anomalies in the
impugned order and submitted that the sole
basis of taking decision of de-affiliation is
the enquiry report though while the enquiry
by the enquiry committee constituted by
the opposite party no.4, the petitioners were
not associated. He also added that in
compliance of the order passed by the writ
court, the documents were sent, vide letter
dated 8.11.2021 to the opposite party no.4
but without considering the same, the
above order impugned is passed. He next
added that the show cause notice dated
12.10.2023 was sent to the school on its
registered email but the same could not
come in the notice of the Principal or
Manager of the petitioners' Institution,
perhaps, due to some inadvertence of the
personnel of the school but fact remains
that no physical copy of the show cause
notice or any reminder was served upon the
petitioners while attaching the enquiry
report. It has been practice of the CBSE, in
past, to send notices and multiple reminders
along with the telephonic information but
in the instant matter, the same practice has
not been followed deliberately and in fact
the CBSE has blindly relied upon the report
4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1413
of the Committee constituted by the
District Magistrate which was issued only
on the complaint made by one of the
guardian of the student of the Institution.

12. Lastly, it is submitted that
future of the students are on stake as most
of the students have been studying in the
petitioners' Institution since beginning and
they have been thrown to suffer and, in this
event also, welfare of the students have
been ignored by the CBSE in a hasty
manner.

13. In support of his contention,
learned counsel for the petitioners has
placed reliance on the Judgment reported in
1993 (4) SCC 727, Managing Director,
ECIL Hyderabad and others Vs. B.
Karunakar and others and referred paras
29 and 30 of the abovesaid Judgments
which are quoted hereinunder:-

"29. Hence it has to be held that
when the enquiry officer is not the
diselplinary
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 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.
30. Hence the incidental questions
raised above may be answered as follows:
[i] Since the denial of the report of
the enquiry officer is a denial of reasonable
opportunity and a breach of the principles of
natural justice, it follows that the statutory
rules, if any, which deny the report to the
employee are against the principles of
natural justice and, therefore, invalid. The
delinquent employee will, therefore, be
entitled to a copy of the report even if the
statutory rules do not permit the furnishing
of the report or are silent on the subject.
[ii] The relevant portion of Article
311(2) of the Constitution is as follows:
"(2) No such person as aforesaid
shall be dismissed or removed or reduced in
rank except after an inquiry in which he has
been informed of the charges against him
and given a reasonable opportunity of being
heard in respect of those charges."
Thus the article makes it obligatory
to hold an inquiry before the employee is
dismissed or removed or reduced in rank.
The article, however, cannot be construed to
mean that it prevents or prohibits the inquiry
when punishment other than that of
dismissal, removal or reduction in rank is
awarded. The procedure to be followed in
awarding other punishments is laid down in
the service rules governing the employee.
What is further, Article 311(2) applies only
to members of the civil services of the Union
or an all-India service or a civil service of a
State or to the holders of the civil posts
under the Union or a State. In the matter of
all punishments both Government servants
and others are governed by their service
rules. Whenever, therefore, the service rules
contemplate an inquiry before a punishment
is awarded and when the enquiry officer is
not the disciplinary authority the delinquent
employee will have the right to receive the
enquiry officer's report notwithstanding the
nature of the punishment.
[iii] Since it is the right of the
employee to have the report to defend
himself effectively and he would not know in
advance whether the report is in his favour
or against him, it will not be proper to
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
construe his failure to ask for the report, as
the waiver of his right. Whether, therefore,
the employee asks for the report or not, the
report has to be furnished to him.
[iv] In the view that we have taken,
viz., that the right to make representation to
the disciplinary authority against the
findings recorded in the enquiry report is an
integral part of the opportunity of defence
against the charges and is a breach of
principles of natural justice to deny the said
right, it is only appropriate that the law laid
down in Mohd. Ramzan case should apply to
employees in all establishments whether
Government or non-Government, public or
private. This will be the case whether there
are
rules
governing
the
disciplinary
proceeding or not and whether they
expressly prohibit the furnishing of the copy
of the report or are silent on the subject.
Whatever the nature of punishment, further,
whenever the rules require an inquiry to be
held, for inflicting the punishment in
question, the delinquent employee should
have the benefit of the report of the enquiry
officer before the disciplinary authority
records its findings on the charges levelled
against him. Hence question (iv) is answered
accordingly.
[v] The next question to be
answered is what is the effect on the order of
punishment when the report of the enquiry
officer is not furnished to the employee and
what relief should be granted to him in such
cases. The answer to this question has to be
relative to the punishment awarded. When
the employee is dismissed or removed from
service and the inquiry is set aside because
the report is not furnished to him, in some
cases the non-furnishing of the report may
have prejudiced him gravely while in other
cases it may have made no difference to the
ultimate punishment awarded to him. Hence
to direct reinstatement of the employee with
back-wages in all cases is to reduce the
rules of justice to a mechanical ritual. The
theory of reasonable opportunity and the
principles of natural justice have been
evolved to uphold the rule of law and to
assist the individual to vindicate his just
rights. They are not incantations to be
invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice
has been caused to the employee or not on
account of the denial to him of the report,
has to be considered on the facts and
circumstances
of
each
case.
Where,
therefore, even after the furnishing of the
report, no different consequence would have
followed, it would be a perversion of justice
to permit the employee to resume duty and
to get all the consequential benefits. It
amounts to rewarding the dishonest and the
guilty and thus to stretching the concept of
justice to illogical and exasperating limits. It
amounts to an "unnatural expansion of
natural justice" which in itself is antithetical
to justice."

14. Referring the aforesaid, he
submits that the Constitutional Bench of
the Apex Court, while framing several
questions has answered that denial of
supply of the enquiry report to the
delinquent,
is
denial
of
reasonable
opportunity and breach of principles of
natural justice.

15. Further reliance is placed on a
Judgment reported in (2014) 7 SCC 340,
Union of India and others Vs. R.P. Singh
and paras 12, 20, 21, 23 and 24 are
referred, which are quoted hereinunder:-

"12. We will be failing in our duty if
we do not take note of the submission of Mr
W.A. Qadri that the decision in S.N. Narula
case is not an authority because the
Tribunal had set aside the order of the
disciplinary authority on the ground that it
4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1415
was a non-speaking order. Be that as it
may, when the issue was raised before this
Court and there has been an advertence to
the same, we are unable to accept the
submission of Mr Qadri. The said decision
in S.N. Narula case is an authority for the
proposition that the advice of UPSC, if
sought and accepted, the same, regard
being had to the principles of natural
justice, is to be communicated before
imposition of punishment."
"20. Testing on the aforesaid
principles it can safely be concluded that
the judgment in T.V. Patel case is per
incuriam.
21. At this juncture, we would like
to give our reasons for our respectful
concurrence with S.K. Kapoor. There is no
cavil over the proposition that the language
engrafted in Article 320(3)(c) does not
make the said article mandatory. As we
find, in T.V. Patel case3, the Court has
based its finding on the language employed
in Rule 32 of the Rules. It is not in dispute
that the said Rule from the very inception is
a part of the 1965 Rules. With the efflux of
time, there has been a change of perception
as
regards
the
applicabilityany
the
principles of natural justice. An inquiry
report in a disciplinary proceeding is
required to be furnished to the delinquent
employee so that he can make an adequate
representation
explaining
his
own
stand/stance. That is precisely what has
been laid down in B. Karunakar cases. We
may reproduce the relevant passage with
profit: (B. Karunakar case, SCC p. 756,
para 29)
"29. Hence it has to be held 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
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 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."
"23. We have referred to the
aforesaid decision in B. Karunakar case in
e extenso as we find that in the said case it
has been opined by the Constitution Bench
that non-supply of the enquiry report is a
breach of the principle of natural justice.
Advice from UPSC, needless to say, when
utilised
as
a
material
against
the
delinquent officer, it should be supplied in
advance. As it seems to us, Rule 32
provides for supply of copy of advice to the
government servant at the time of making
an order. The said stage was in prevalence
before the decision of the Constitution
Bench. After the said decision, in our
considered opinion, the authority should
have
clarified
the
Rule
regarding
development in the service jurisprudence.
24. We have been apprised by Mr
Raghavan,
learned
counsel
for
the
respondent, that after the decision in S.K.
Kapoor case, the Government of India,
Ministry of Personnel, PG & Pensions,
Department of Personnel and Training vide
Office Memorandum dated 6-1-2014 has
issued the following directions:
"4. Accordingly. it has been decided
that in all disciplinary cases where the
Commission is to be consulted, the
following procedure may be adopted:
(i) On receipt of the inquiry report,
the DA may examine the same and forward
it to the Commission with his observations:
(ii) On receipt of the Commission's
report, the DA will examine the same and
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
forward the same to the charged officer
along with the inquiry report and his
tentative reasons for disagreement with the
inquiry report and/or the advice of UPSC;
(iii) The charged officer shall be
required to submit, if he so desires, his
written representation or submission to the
disciplinary authority within fifteen days,
irrespective
of
whether
the
inquiry
report/advice of UPSC is in his favour or
not. (iv) The disciplinary authority shall
consider the representation of the charged
officer and take furthe further action as
prescribed ribed in sub-rules (2-A) to (4) of
Rule 15 of the CCS (CCA) Rules, 1965."

16. Placing reliance on the
abovesaid, he submits that referring the
decision in B. Karunakar's case (supra), it
has been held that enquiry report should be
supplied in advance as non-supply of the
enquiry report is a breach of principles of
natural justice.

17. Further placing reliance on the
Judgment and order reported in 2017 (1)
SCC 768, Himachal Pradesh State
Electricity Board Limited Vs. Mahesh
Dahiya, referred paras 23, 24 and 25,
which are quoted hereinunder:-

"23. The basis of coming to the
conclusion by both the learned Single
Judge and the Division Bench that
disciplinary authority has violated the
principle of natural justice is based on the
fact that although the enquiry report was
sent to the writ petitioner by the letter dated
2-4-2008, the disciplinary authority-cum-
whole-time members have already come to
the opinion on 25-2-2008 that the writ
petitioner be punished with major penalty.
The Division Bench of the High Court has
placed reliance on Union of India v. R.P.
Singh.
24. In the above case the issue was
as to whether non-supply of the copy of
advice of UPSC to the delinquent officer at
pre-decision stage violates the principle of
natural justice. This Court placed reliance
on the Constitution Bench judgment in
ECIL v. B. Karunakar and laid down the
following in para 21: (R.P. Singh case, SCC
p. 349)
"21. At this juncture, we would like
to give our reasons for our respectful
concurrence with S.K. Kapoor. There is no
cavil over the proposition that the language
engrafted in Article 320(3)(c) does not
make the said article mandatory. As we
find, in T.V. Patel case, the Court has based
its finding on the language employed in
Rule 32 of the Rules. It is not in dispute
that the said Rule from the very inception is
a part of the 1965 Rules. With the efflux of
time, there has been a change of perception
as regards the applicability of the principles
of natural justice. An enquiry report in a
disciplinary proceeding is required to be
furnished to the delinquent employee so
that
he
can
make
an
adequate
representation
explaining
his
own
stand/stance. That is precisely what has
been laid down in B. Karunakar cases. We
may reproduce the relevant passage with
profit: (B. Karunakar cases, SCC p. 756,
para 29)
29. Hence it has to be held 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
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 authority takes its
4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1417
decision on the charges, is a denial of
reasonable opportunity to the employee a
breach of the principles to prove his
innocence and is of natural justice."
There can be no dispute to the
above proposition.
25. The Constitution Bench in
ECIL v. B. Karunakar after elaborately
considering the principle of natural justice
in the context of the disciplinary inquiry
laid down the following in paras 29, 30(iv)
and (v): (SCC pp. 756-58)
"29. Hence it has to be held 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
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 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.
30.... (iv) In the view that we have
taken
viz.
that
the
right
to
make
representation to the disciplinary authority
against the findings recorded in the enquiry
report is an integral part of the opportunity
of defence against the charges and is a
breach of principles of natural justice to
deny the said right, it is only appropriate
that the law laid down in Mohd. Ramzan
cases should apply to employees in all
establishments whether Government or
non-government, public or private. This
will be the case whether there are rules
governing the disciplinary proceeding or
not and whether they expressly prohibit the
furnishing of the copy of the report or are
silent on the subject. Whatever the nature
of punishment, further, whenever the rules
require an inquiry to be held, for inflicting
the punishment in question, the delinquent
employee should have the benefit of the
report of the enquiry officer before the
disciplinary authority records its findings
on the charges levelled against him. Hence
question (iv) is answered accordingly.
(v) The next question to be
answered is what is the effect on the order
of punishment when the report of the
enquiry officer is not furnished tothe
employee and what relief should be granted
to him in such cases. The answer to this
question has to be relative to the
punishment awarded. When the employee
is dismissed or removed from service and
the inquiry is set aside because the report is
not furnished to him, in some cases the
non-furnishing of the report may have
prejudiced him gravely while in other cases
it may have made no difference to the
ultimate punishment awarded to him.
Hence to direct reinstatement of the
employee with back wages in all cases is to
reduce the rules of justice to a mechanical
ritual. The theory of reasonable opportunity
and the principles of natural justice have
been evolved to uphold the rule of law and
to assist the individual to vindicate his just
rights. They are not incantations to be
invoked nor rites to be performed on all
and sundry occasions. Whether in fact,
prejudice has been caused to the employee
or not on account of the denial to him of
the report, has to be considered on the facts
and circumstances of each case. Where,
therefore, even after the furnishing of the
report, no different consequence would
have followed, it would be a perversion of
justice to permit the employee to resume
duty and to get all the consequential
benefits. It amounts to rewarding the
dishonest and the guilty and thus to
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
stretching the concept of justice to illogical
and exasperating limits. It amounts to an
"unnatural expansion of natural justice"
which in itself is antithetical to justice."

18. While referring the aforesaid,
he submits that it is settled that if a person
is charged then he shall be given the
opportunity
to
submit
reply,
while
furnishing the evidence relied upon.

19. Lastly, the emphasis has been
placed on a case reported in (2023) 6 SCC
1, State Bank of India and others Vs.
Rajesh
Agarwal
and
others,
and
paragraphs 36, 40 , 41, 42, 80, 81 and 84
are
referred,
which
are
extracted
hereinunder:-

"36. We need to bear in mind that
the principles of natural justice are not
mere legal formalities. They constitute
substantive obligations that need to be
followed
by
decision-making
and
adjudicating authorities. The principles of
natural justice act as a guarantee against
arbitrary action, both in terms of procedure
and substance, by judicial, quasi-judicial,
and
administrative
authorities.
Two
fundamental principles of natural justice
are entrenched in Indian jurisprudence: (i)
nemo judex in causa sua, which means that
no person should be a Judge in their own
cause; and (ii) audi alteram partem, which
means
that
a
person
affected
by
administrative, judicial or quasi-judicial
action must be heard before a decision is
taken.
The
courts
generally
favour
interpretation of a statutory provision
consistent with the principles of natural
justice because it is presumed that the
statutory authorities do not intend to
contravene fundamental rights. Application
of the said principles depends on the facts
and circumstances of the case, express
language and basic scheme of the statute
under which the administrative power is
exercised, the nature and purpose for which
the power is conferred, and the final effect
of the exercise of that power.
40. The process of forming an
informed
opinion
under
the
Master
Directions on Frauds is administrative in
nature. This has also been acceded to by
RBI and lender banks in their written
submissions. It is now a settled principle of
law that the rule of audi alteram partem
applies to administrative actions, apart
from judicial and quasi-judicial functions.
15 It is also a settled position in
administrative law that it is mandatory to
provide for an opportunity of being heard
when an administrative action results in
civil consequences to a person or entity.
41. In State of Orissa v. Binapani
Dei16, a two-Judge Bench of this Court
held that every authority which has the
power to take punitive or damaging action
has a duty to give a reasonable opportunity
to be heard. This Court further wear held
that
an
administrative
action
which
involves civil consequences must be made
consistent with the rules of natural justice:
(AIR p. 1271, para 9)
"9.... The rule that a party to whose
prejudice an order is intended to be passed
is entitled to a hearing applies alike to
judicial tribunals and bodies of persons
invested with authority to adjudicate upon
matters involving civil consequences. It is
one of the fundamental rules of our
constitutional set-up that every citizen is
protected against exercise of arbitrary
authority by the State or its officers. Duty
to act judicially would therefore arise from
the very nature of the function intended to
be performed: it need not be shown to be
super-added. If there is power to decide
and determine to the prejudice of a person,
duty to act judicially is implicit in the
4 All. B.S.S. Public School, Raebareli & Ors. Vs. U.O.I. & Ors.
1419
exercise of such power. If the essentials of
justice be ignored and an order to the
prejudice of a person is made, the order is
a nullity. That is a basic concept of the rule
of law and importance thereof transcends
the significance of a decision in any
particular case."
42. In Maneka Gandhi v. Union of
India11, a seven-Judge Bench of this Court
held that any person prejudicially affected
by a decision of the authority entailing civil
consequences must be given an opportunity
of being heard. This has been reiterated in
a catena of decisions of this Court.
80. Audi alteram partem has
several facets, including the service of a
notice to any person against whom a
prejudicial order may be passed and
providing an opportunity to explain the
evidence collected. In Tulsiram Patel34,
this Court explained the wide amplitude of
audi alteram partem: (SCC p. 476, para
96)
"96. The rule of natural justice with
which we are concerned in these appeals
and writ petitions, namely, the audi alteram
partem rule, in its fullest amplitude means
that a person against whom an order to his
prejudice may be passed should be
informed of the allegations and charges
against him, be given an opportunity of
submitting his explanation thereto, have the
right to know the evidence, both oral or
documentary, by which the matter is
proposed to be decided against him, and to
inspect the documents which are relied
upon for the purpose of being used against
him, to have the witnesses who are to give
evidence against him examined in his
presence and have the right to crossexamine them, and to lead his own
evidence, both oral and documentary, in his
defence. The process of a fair hearing need
not, however, conform to the judicial
process in a court of law, because judicial
adjudication of causes involves a number
of technical rules of procedure and
evidence which are unnecessary and not
required for the purpose of a fair hearing
within the meaning of audi alteram partem
rule in a quasi-judicial or administrative
inquiry." (emphasis supplied)
81. Audi alteram partem, therefore,
entails that an entity against whom
evidence is collected must: (i) be provided
an opportunity to explain the evidence
against it; (ii) be informed of the proposed
action, and (iii) be allowed to represent
why the proposed action should not be
taken. Hence, the mere participation of the
borrower
during
the
course
of
the
preparation of a forensic audit report
would not fulfil the requirements of natural
justice. The decision to classify an account
as fraud involves due application of mind
to the facts and law by the lender banks.
The lender banks, either individually or
through a JLF, have to decide whether a
borrower has breached the terms and
conditions of a loan agreement, and based
upon such determination the lender banks
can seek appropriate remedies. Therefore,
principles of natural justice demand that
the borrowers must be served a notice,
given an opportunity to explain the findings
in the forensic audit report, and to
represent before the account is classified as
fraud under the Master Directions on
Frauds.
84. In E.P. Royappa v. State of
T.N.38, this Court held that an arbitrary
State action is violative of Article 14 of the
Constitution. Again, in Maneka Gandhi 17
this Court reiterated that the principle of
non-arbitrariness pervades Article 14. An
administrative action can be tested for
constitutional infirmities under Article 14
on four grounds: (i) unreasonableness or
irrationality; (ii) illegality; (iii) procedural
impropriety;39 and (iv) proportionality.
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
However, the scope of such judicial review
is limited to ascertaining the deficiency in
the decision-making process, and not the
correctness of the choice made by the
administrator."

20. Particularly, emphasizing on
paragraph 36, he argued that Rule of Audi
Alteram Partem is explained by the Apex
Court and it is held that a person affected
by administrative,
judicial
or
quasi
judicial action, must be heard, before
taking decision.

21. Concluding his arguments, he
submits that the impugned de-affiliation
order dated 26.2.2024 is bad in the eyes of
law as the same has been passed without
providing copy of the enquiry report along
with the show cause notice.

22.