# Dr. Rubina Iqbal v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 733
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-19
- **Case number:** Writ A No. 27144 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-rubina-iqbal-v-state-of-u-p-ors-51639
- **Pages:** 9

## Headnote

Service Law - Disciplinary Proceedings -
Compliance with Natural Justice - Petitioner, a
Principal at a minority institution, challenged her
termination order dated 17.09.2018, alleging
non-compliance with procedural requirements
under Regulation 37 of Chapter III of the U.P.
Intermediate Education Act, 1921 - Held, the
enquiry was vitiated due to failure to serve the
petitioner with the suspension order, chargesheet, enquiry report, or show cause notice, and
no opportunity was provided for her to
participate in the enquiry - The Committee of
Management's counter affidavit failed to provide
evidence of service of these documents or
notices, violating principles of natural justice as
mandated by St. of U.P. Vs T.P. Lal Srivastava
and Managing Director ECIL, Hyderabad Vs B.
Karunakar - The termination order and enquiry
report were quashed. (Paras 2, 5, 7, 8, 9, 10,
13)
Service Law - Minority Institutions and
Regulatory Compliance - The Committee of
Management, a minority institution, argued that
the termination was justified and that the
petitioner failed to cooperate with the enquiry -
Held, even in minority institutions, compliance
with Regulations 35 to 37 of the U.P.
Intermediate Education Act, 1921, is mandatory
when they are regulatory in nature and do not
infringe upon Article 30 rights - The absence of
an enquiry sub-committee, lack of oral enquiry,
and failure to issue a second show cause notice
with the enquiry report violated statutory
procedures,
rendering
the
termination
unsustainable, as supported by Girish Chandra
Vs St. of U.P. and other cited cases. (Paras 9,
10, 11)
Service
Law
-
Relief
and
Further
Proceedings - The petitioner's termination
734 INDIAN LAW REPORTS ALLAHABAD SERIES
was set aside due to procedural irregularities -
Held, the petitioner is entitled to reinSt.ment
with salary, but the respondents were granted
liberty
to
initiate
fresh
proceedings
in
accordance with the law, ensuring compliance
with Regulations 35 to 37 and principles of
natural justice. (Para 13)

Writ Petition Allowed .

Termination Order and Enquiry Report Quashed
-
Petitioner
ReinSt.d
with
Liberty
to
Respondents to Proceed Afresh.

List of Cases Cited :

## Text

3 All. Dr. Rubina Iqbal Vs. State of U.P. & Ors.
733

iv). The enquiry committee shall
fix a date and notify all those witnesses
who were examined by the enquiry
committee earlier to appear before it fixing
a date, time and place and shall give
opportunity to Dr. Garg to cross examine
each of the witnesses but not more than 2
or 3 dates shall be fixed for this purpose.

v).
After
cross-examination
procedure
is
completed,
the
enquiry
committee shall submit report afresh to the
Committee of Management within three
months of its constitution who shall then
proceed in accordance with and as per
procedure
prescribed
meeting
the
requirements of second show cause notice,
if enquiry committee held her guilty of
charges, in the light of the judgment in
Managing Director ECIL, Hyderabad
(supra). Final decision shall be taken by
Committee of Management within next one
month's time of submission of enquiry
report.

68. In the circumstances, impugned
order dated 4.10.2023 passed by respondent
Vice Chancellor, Mahatma Jyotiba Phule
Rohilkhand University Bareilly as well as
resolution
of
the
Committee
of
Management
dated
27.08.2019
are
quashed.

69. With these aforesaid observations
and directions, these two writ petitions
stand disposed of.

70. Cost made easy.
----------
(2024) 3 ILRA 733
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 27144 of 2018
Dr. Rubina Iqbal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Bhanu
Pratap
Singh,
Sri
Arvind
Srivastava, Sri Gajendra Singh, Sri Gautam
Baghel, Sri Shivendra Rajwar

Counsel for the Respondents:
C.S.C., Sri Utkarsh Singh

Service Law - Disciplinary Proceedings -
Compliance with Natural Justice - Petitioner, a
Principal at a minority institution, challenged her
termination order dated 17.09.2018, alleging
non-compliance with procedural requirements
under Regulation 37 of Chapter III of the U.P.
Intermediate Education Act, 1921 - Held, the
enquiry was vitiated due to failure to serve the
petitioner with the suspension order, chargesheet, enquiry report, or show cause notice, and
no opportunity was provided for her to
participate in the enquiry - The Committee of
Management's counter affidavit failed to provide
evidence of service of these documents or
notices, violating principles of natural justice as
mandated by St. of U.P. Vs T.P. Lal Srivastava
and Managing Director ECIL, Hyderabad Vs B.
Karunakar - The termination order and enquiry
report were quashed. (Paras 2, 5, 7, 8, 9, 10,
13)
Service Law - Minority Institutions and
Regulatory Compliance - The Committee of
Management, a minority institution, argued that
the termination was justified and that the
petitioner failed to cooperate with the enquiry -
Held, even in minority institutions, compliance
with Regulations 35 to 37 of the U.P.
Intermediate Education Act, 1921, is mandatory
when they are regulatory in nature and do not
infringe upon Article 30 rights - The absence of
an enquiry sub-committee, lack of oral enquiry,
and failure to issue a second show cause notice
with the enquiry report violated statutory
procedures,
rendering
the
termination
unsustainable, as supported by Girish Chandra
Vs St. of U.P. and other cited cases. (Paras 9,
10, 11)
Service
Law
-
Relief
and
Further
Proceedings - The petitioner's termination
734 INDIAN LAW REPORTS ALLAHABAD SERIES
was set aside due to procedural irregularities -
Held, the petitioner is entitled to reinSt.ment
with salary, but the respondents were granted
liberty
to
initiate
fresh
proceedings
in
accordance with the law, ensuring compliance
with Regulations 35 to 37 and principles of
natural justice. (Para 13)

Writ Petition Allowed .

Termination Order and Enquiry Report Quashed
-
Petitioner
ReinSt.d
with
Liberty
to
Respondents to Proceed Afresh.

List of Cases Cited :

1. St. of U.P. & anr.Vs T.P. Lal Srivastava , 1997
(1) LLJ 831

2. Salahuddin Ansari Vs St. of U.P. & ors. , 2008
(3) ESC 1667 (All)

3. Subhash Chandra Sharma Vs Managing
Director & anr. , 2000 (1) U.P.L.B.E.C. 541

4. Managing Director ECIL, Hyderabad & ors. Vs
B. Karunakar & ors. , (1992) 3 JT (SC) 605

5. Girish Chandra Vs St. of U.P. & ors. , Civil
Misc. Writ Petition No. 28553 of 2013, decided
on 23.05.2023

6. Hardev Singh Vs Committee of Management,
D.B. Santokh Singh Khalsa Inter College, Agra &
anr. , 2004 (2) LBESR 1138

7. Tariq Ayyub Vs St. of U.P. & ors. , decided on
21.10.2010

8. Abha Saxena Vs St. of U.P. & ors. , 2012 (10)
ADJ 484

9. Mohd. Ramzan Khan , AIR 1991 SC 471

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Shivendra Rajwar,
Advocate holding brief of Sri Gautam
Baghel, learned counsel for the petitioner,
Sri
Utkarsh
Singh,
learned
counsel
appearing on behalf of fifth respondent and
learned
Standing
Counsel
for
Staterespondents and perused the record.

2. Petitioner before this Court is
aggrieved by the order of termination of her
services dated 17.09.2018 and the basic
plea taken is that in spite of the fact that the
petitioner was continuing in substantive
appointment in the institution as Principal,
she was never served at any point of time
either with any suspension order, the
charge-sheet or was permitted to participate
in the alleged enquiry conducted by
respondent-Committee
of
Management.
She was even not served with any show
cause notice as to the proposed punishment,
nor was given any enquiry report. These
pleadings have come to be raised in
paragraph-24 of the writ petition to which
reply has come to be made in paragraph-23
of the counter affidavit filed by fifth
respondent,
who
is
the
Disciplinary
Authority in the matter. Thus according to
learned counsel for the petitioner, enquiry
being de hors the procedure prescribed
under Regulation 37 of Chapter XXXIII of
the U.P. Intermediate Education Act, 1921
(for short, the Intermediate Act, 1921"), the
order of termination of services of the
petitioner cannot be sustained in law.

3. Sri Utkarsh Singh, learned counsel
appearing on behalf of fifth respondent has
sought to justify the order for the reasons
assigned therein and has further taken the
plea by way of defence set up in
paragraphs-8 and 9 of the counter affidavit.
He also submitted that reply to the
pleadings raised in paragraph-24 of the writ
petition, has been given in paragraph-23 of
the counter affidavit.

4. Learned Standing Counsel has
taken his stand that the management was
required to furnish detail report to the
3 All. Dr. Rubina Iqbal Vs. State of U.P. & Ors.
735
petitioner regarding the proceedings being
drawn against her but the management
being a minority institution choosen not to
take the same. He submits that in the
absence of any paper being submitted
before the Education Authority, he could
neither approve the order of termination,
nor could he say anything in the matter.
However, he submits that from the recital
made in the order of termination, it is clear
as is stated in the said order that the
petitioner did not appear before the enquiry
committee but there is no material
discussed as to when she was offered
opportunity to appear and she refused to
appear. In the circumstances, he says that
the principles of natural justices, appears to
have not been complied with in the matter
of imposition of major penalty.

5. Heard learned counsel for the
respective parties and perused the record. I
find that specific pleadings have been
raised in paragrap-24 of the writ petition
with regard to the fact that neither the order
of suspension nor charge-sheet was ever
served upon the petitioner. She was not
even served with the enquiry report and
straightway the order of termination has
been passed. Paragraph-24 of the writ
petition is reproduced hereunder:-

"24. That virtually the suspension
order dated 07.08.2018 was not served on
the petitioner and firstly only informed by
the Peon of the College, that you are
suspended and not permitted to enter into
the College then the petitioner attended the
hearing made by D.I.O.S. dated 06.09.2018
and 17.09.2018, and lastly on 17.09.2018 it
was communicated on behalf of respondent
no. 5 to the D.I.O.S. since the petitioner has
been terminated hence the hearing on her
suspension is not required; and as both the
said
papers
i.e.
Suspension
and
Termination were nor communicated to the
petitioner hence knowing the correct facts
she obtained the completed papers relating
to the present matter in dispute form the
D.I.O.S. under R.T.I. Act on 03.12.2018
and from the perusal of such papers the
following fact came in the light-

(i) Neither the Suspension was
communicated
to
the
petitioner
nor
properly to the D.I.O.S. mentioning the fact
as per Regulation 39 (1) of Chapter III of
Regulation framed under Act, 1921

(ii) From the perusal of all the
such papers provided by the office of
D.I.O.S. to the petitioner on 03.12.2018
under R.T.I. Act, it also reveals the
suspension was wrongly done by the
respondent no. 5 without any report or
resolution of committee of management.

(iii) Neither any charge-sheet
containing in the suspension order nor the
supporting documents were either provided
to the D.I.O.S. or to the petitioner.

(iv) From the perusal of said
papers it reveals that neither the enquiry
into the matter in dispute was contemplated
nor the date, time and place either of
enquiry or for hearing of petitioner was
ever Informed to the petitioner nor any
papers/ documents were supplied for reply.

(v) Neither any copy of the
complaint, report or enquiry report was
ever been supplied by the respondent no. 5
or by the alleged enquiry officer and the
petitioner abruptly terminated without
providing
mandatory
opportunity
of
hearing.

(vi) Lastly it is submitted that the
complete process from suspension to
termination of the petitioner has been
wrongly, illegally and malafiedly done by
the Manager of the institution on the behest
of one Sri Abdul Hasib (the real brother of
the respondent no. 5) in utter violation of
the provisions contained under Regulation
736 INDIAN LAW REPORTS ALLAHABAD SERIES
39 of Chapter III of Regulation framed
under Act, 1921 and as such the complete
process is illegal, wrong, malafied and
liable to quashed."

6. In reply to paragraph-24 of the writ
petition, it has come to be averred in
paragraph-23 of the counter affidavit that
this paragraph being repetitive in nature,
reply already given in preceding paragraphs
be read here also in reply and, therefore,
the pleadings raised in paragraph-24 did
not call for any reply. Paragraph-23 of the
counter affidavit is reproduced hereunder:-

"23. That the content of the
paragraph no. 24 of the writ petition are
repetitive in nature which has been already
replied in the preceding paragraphs of this
counter affidavit, hence do not call for any
reply."

7. However, so far the preceding
paragraphs in the said counter affidavit are
concerned, I do not find any statement
anywhere in support of the stand that
petitioner was ever served with any notice
except certain dates mentioned regarding
suspension in paragrap-22 and paragraph
25 and that the Committee of Management
had requested the District Inspector of
Schools to direct the petitioner to appear
and face the enquiry. Paragraph-8 of the
counter affidavit also states about the
service of the charge-sheet but no material
has been brought on record evidencing the
factum of service of charge-sheet and
enquiry report upon the petitioner, nor any
document has been brought on record to
demonstrate that the petitioner was ever
served with any notice to appear before the
Enquiry Committee. Paragraphs-8, 22 and
25 of the counter affidavit are reproduced
hereunder:-

"8.
That
disciplinary
proceeding was initiated against the
petitioner by the institution and the services
of the petitioner was suspended vide order
dated 07/08/2018 and thereafter charge
sheet was served upon the petitioner on
18/08/2018.

22. That the content of the
paragraph no.23(iii) & (iv) of the writ
petition are not admitted as stated hence
denied. In reply thereto it is submitted that
the management upon receiving notice
dated 04.09.2018 calling for explaining the
suspension of the petitioner by the manager
on the date fix 06.09.2018 by the D.I.O.S.
The
management
via
letter
dated
06.09.2018 informed the D.I.O.S. office
that the manager of the institution was out
of station for business of the institution.
Hence, the manager couldn't appear before
the D.I.O.S on the dates fixed for hearing
by respondent no.4.

25. That the content of the
paragraph no.26 of the writ petition are not
admitted as stated hence denied. In reply
thereto the inquiry committee headed by
Mohd. Javed via letter dated 06.09.2018
has requested D.I.O.S to direct the
petitioner to appear before the inquiry
committee and cooperate with proceeding
of inquiry committee. The copy of the same
was also sent to the petitioner."

8. Thus, from the above pleadings
raised in the writ petition and the counter
affidavit filed by the Committee of
Management, it bornes out clearly that
there was never any effective service of
charge-sheet upon which the enquiry is
alleged to have been conducted by the
Enquiry Committee constituted by the
Committee
of
Management.
Thus
according to me, it cannot be said that
proper
procedure
being
religiously
followed
as
prescribed
for
under
Regulation 37 of the Act. To appreciate
about the conduct of enquiry by the
3 All. Dr. Rubina Iqbal Vs. State of U.P. & Ors.
737
Committee, it is relevant to reproduce
Regulation 35 to 37 as contained under
Chapter III of the Act, hence the same is
reproduced hereunder:-

"35. दशक यत अथव गम्भीर प्रकृदत के
आरोपों की प्रदतकूल आख्य प्र प्त होने पर सदमदत अध्य पकों
एवां अधय कमाच ररयों के दवषय में प्रध न ध्य पक अथव
आच या अथव प्रबधधक को ि ाँच अदधक री दनयुि करेगी
(अथव प्रबधधक थवयां ि ाँच करेग यदि सदमदत द्व र दनयमों के
अधतगात उसे यह अदधक र प्रदतदनदहत हो गये है) और प्रध न
अध्य पक अथव आच या के दवषय में एक छोटी उपसदमदत
होगी दिसे आख्य यथ शीघ्र प्रथतुत करने के दनिेश होंगे।

चतुथा िेणी के कमाच ररयों के सम्बधध में
प्रध न च या/प्रध न ध्य पक द्व र दकसी वररष्ठ अध्य पक को
ि ाँच अदधक री दनयुि दकय ि येग ।

36. (1) The grounds on which it is
proposed to take action shall be reduced in
the form of a definite charge or charges
which shall be communicated to the
employee charged and which shall be so
clear and precise as to give sufficient
indication to the charged employee of the
facts and circumstances against him. He
shall be required within three weeks of the
receipt of the charge-sheet to put in a
written statement of his defence and to state
whether he desired to be heard in person. If
he or the inquiring authority so desires an
oral inquiry shall be held in respect of such
of the allegations as are not admitted. At
that inquiry such oral evidence will be
heard as that inquiring authority considers
necessary. The person charged shall be
entitled to cross-examine the witnesses, to
give evidence in person, and to have such
witnesses called as he may wish: provided
that the inquiring authority conducting the
inquiry may for sufficient reasons to be
recorded in writing refuse to call a witness.
The proceedings shall contain a sufficient
record of the evidence and statement of the
findings and the grounds thereof. The
inquiring authority conducting the inquiry
may
also
separately
from
these
proceedings,
make
his
own
recommendation regarding the punishment
to be imposed on the employee.

(2) Clauses (1) shall not apply
where
the
person
concerned
has
absconded, or where it is for other reasons
impracticable to communicate with him.

(3) All or any of the provisions of
clause (1) may for sufficient reasons to be
recorded in writing be waived where there
is difficulty in observing exactly the
requirements
thereof
and
those
requirements can in the opinion of the
inquiring authority be waived without
injustice to the person charged.

37. ि ाँच अदधक री से क याव ही की आख्य
तथ सांथतुदत प्र प्त होने के ब ि शीघ्र ही कमाच री को नोदटस
िेने के ब ि प्रवधध सदमदत की बैठक क याव ही की आख्य
तथ सांथतुदत पर दवच र करने के दलए होगी और उस म मले
पर दनणाय लेगी। कमाच री को, यदि वह च हत है सदमदत के
समक्ष थवयां उपदथथत होने की आज्ञ िी ि येगी दिससे वह
अपन अदभयोग प्रथतुत कर सके और बैठक में उपदथथत दकसी
सिथय द्व र पूछे गये दकसी प्रश्न क उत्तर िे सके। तब सदमदत
पूणा आख्य समथत सम्बदधधत क गि-पत्र सदहत दनरीक्षक
अथव मण्डलीय दनरीदक्षक को उसके द्व र प्रथत दवत
क याव ही को थवीकृत हेतु प्रेदषत करेगी।

दकधतु, चतुथा िेणी के कमाच ररयों के सम्बधध में
दनरीक्षक दनरीदक्षक को थवीकृदत हेतु कोई आख्य नहीं भेिी
ि येगी। इनके सम्बधध में उपरोि स री क याव ही दनयुदि
प्र दधक री द्व र की ि येगी।"

9. From a bare reading of the above
provisions as contained under relevant
regulations, it has come to be absolutely
clear that there has to be a Enquiry SubCommittee in the matter. However, even
the enquiry report has not been brought on
record by the Committee of Management
so as to justify that there was a lawfully
constituted
Enquiry
Committee
as
contemplated under Regulation 37 of the
738 INDIAN LAW REPORTS ALLAHABAD SERIES
Intermediate Act. Thus, it is writ large on
the face of the record that proper procedure
as prescribed for under the relevant
regulation of the Intermediate Education
Act, have not been followed by the
Committee of Management. The legal
position is very well clear that in the matter
of imposition of major penalty, the
disciplinary
proceedings
have
to
be
conducted
in
accordance
with
the
procedure prescribed for. Secondly, the
second show cause notice is must, if the
disciplinary authority proceeds to concur
with the finds returned by the enquiry
committee, a show cause notice along with
copy of enquiry report be served upon the
petitioner so as to invite her explanation to
the findings returned in the enquiry report.
Thirdly, all the more important aspect is
that in the matter of imposition of major
penalty there has to be oral enquiry held
which the Supreme Court has repeatedly
held in its various decision. The authorities
of the Supreme Court as well as this Court
are quoted hereunder:-

(I) In the case of State of U.P.
and another vs. T.P. Lal Srivastava; 1997
(1) LLJ 831, the Supreme Court has held
that even if the employee has failed to
submit reply to the Charge-sheet, it would
not absolve the Inquiry Officer from
proceeding with the oral inquiry to record
the statement of the department witnesses
and submit a report as to the proof of
charge-sheet.

(II) In the case of Salahuddin
Ansari vs. State of U.P. and others; 2008
(3) ESC 1667 (Allahabad), a Division
Bench of this Court has relied upon an
earlier judgment in the case of Subhash
Chandra Sharma Vs. Managing Director &
another, 2000 (1) U.P.L.B.E.C. 541, and
held that if, no oral enquiry is held, it
amounts to denial of principles of natural
justice to the delinquent employee.The
Court has relied upon the judgment of
Supreme Court in the case of T.P. Lal
Srivastava (Supra).

(III) Regarding second show
cause notice and supply of enquiry report,
the
Supreme
Court
has
laid
down
guidelines in the judgment passed in the
Case
of
Managing
Director
ECIL,
Hyderabad and other vs. B. Karunakar
and others (1992) 3 JT (SC) 605, the
Supreme Court in paragraphs 29 and 30
has observed as follows:-

"29. Hence it has to be held that
when the Inquiry Officer is not the
disciplinary
authority,
the
delinquent
employee has right to receive a copy of the
inquiry
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 Inquiry 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 Inquiry 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.
3 All. Dr. Rubina Iqbal Vs. State of U.P. & Ors.
739

(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 enquiry 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
Inquiry Officer is not the disciplinary
authority the delinquent employee will have
the right to receive the Inquiry 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 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 inquiry 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 Khan's
case (AIR 1991 SC 471) (supra) should
apply to employees in all establishments
whether Government or non- overnment,
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 Inquiry 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
Inquiry 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
740 INDIAN LAW REPORTS ALLAHABAD SERIES
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 a "unnatural expansion of
natural
justice"
which
in
itself
is
antithetical to justice."

"That in the matter of major
penalty there has to be oral enquiry and
that the delinquent employee should be
permitted to participate in the enquiry to
examine
and
cross
examine
the
departmental witnesses."

10. As is reflected from the order of
termination that there is no notice at all
except for a date of notice without there
being any time, date and place fixed to hold
the enquiry, hence it can be safely
presumed that no oral enquiry was held. In
such circumstances, therefore, the order of
termination of services of the petitioner
cannot be sustained in law.

11. In view of the above, therefore,
once the enquiry is held to be vitiated in
law, the final order of termination of
service also stands vitiated and, therefore,
in these circumstances both the enquiry
report and the final order of termination
cannot be sustained. In my above view
supported by the judgment of learned
Single Judge placed before me, which is
also relating to a minority institution in the
case of Girish Chandra vs. State of U.P.
and others in Civil Misc. Writ Petition
No. 28553 of 2013 decided on 23rd May,
2023, in which after recording the
contention of learned counsel for the
petitioner in paragraphs-8 and 9, the Court
returned its finding in paragraphs-10 and 11
and allowed the writ petition. The relevant
paragraphs- 8 to 11 are reproduced
hereunder:-

"8. Sri Ashok Khare contends that
the impugned order is violative of the
procedure prescribed under Regulations 35
to 37 of Chapter III of the U.P.
Intermediate Education Act, 1921 and not
only this, the charges are absolutely
frivolous and the inquiry has proceeded
without giving notice to the petitioner. He
further
contends
that
none
of
the
documents were provided which was
demanded by him. On the contrary a reply
was given by the Committee that the
documents were not required as they were
not necessary for the purpose of the reply.
He, therefore, submits that the respondent -
Committee of Management has proceeded
to terminate the services of the petitioner
without complying with the principles of
natural justice and in clear violation of the
provisions aforesaid. He has relied upon on
three decisions of this Court in the case of
Hardev
Singh
Vs.
Committee
of
Management, D.B. Santokh Singh Khalsa
Inter College, Agra, and another, 2004 (2)
LBESR 1138, the decision in the case of
Tariq Ayyub Vs. State of U.P. and others,
decided on 21.10.2010 and the third
decision in the case of Abha Saxena Vs.
State of U.P. and others, 2012 (10) ADJ
484, to urge that even in minority
institutions where regulations have been
violated, this Court can exercise its
3 All. Lucknow Nagar Nigam Vs. State Public Service Tribunal & Anr.
741
discretion under Article 226 of the
Constitution of India and interfere with the
order of termination.

9. Replying to the aforesaid
submissions,
Sri
Pandey
for
the
Management, submits that this is a case
where the charges are serious enough that
warrant the dismissal of the petitioner. The
charges were inquired into in accordance
with the procedure prescribed but the
petitioner failed to cooperate with the
inquiry and, therefore, the impugned order
is justified. He submits that the reply, which
was given by the petitioner, was absolutely
unsatisfactory and not only this, his
conduct in the institution is such that it is
not desirable to continue him further in
service. Sri Pandey, therefore, submits that
the impugned order does not require any
interference and the findings of fact
recorded cannot be a subject matter of
appeal before this Court under Article 226
of the Constitution of India.

10. Having heard learned counsel
for the parties and having considered the
decisions that have been cited at the bar,
the interference in service matters relating
to employees of minority institutions is
limited to the extent of violation of
procedure
prescribed
under
the
Regulations, provided they are regulatory
in nature, and do not impinge upon the
fundamental
rights
guaranteed
under
Article 30 of the Constitution of India. The
judgments, which have been relied upon by
the learned counsel for the petitioner,
permits such interference and in the instant
case the stand taken by the petitioner is
that the inquiry is vitiated for noncompliance of Regulations 35 to 37 of
Chapter III of the 1921 Act.

11. I have perused the impugned
order and the opening part thereof clearly
recites
the
manner
in
which
the
Management has proceeded to consider the
non-cooperation of the petitioner as one of
the grounds for proceeding to pass the
termination
order.
Regulation
37
of
Chapter III categorically requires that after
the inquiry is concluded, the report of the
Enquiry Officer shall be considered by the
Committee of Management and then the
Committee shall offer an opportunity to the
delinquent employee to give his explanation
and hear him before passing the order of
termination. There is no material discussed
by the District Inspector of Schools to
enable this Court to infer that the
Committee had ever complied with the said
provision. The order impugned dated
15.4.2013 is clearly deficient on this
aspect. Learned counsel for the respondent
- Committee of Management, therefore,
could not support the order on this ground.
The impugned order, therefore, being in
violation of Regulation 37 of Chapter-III of
1921 Act cannot be sustained."

12. In view of the above, this writ
petition succeeds and is allowed.

13. The order of termination of
service of the petitioner dated 17.09.2018
and the enquiry report dated 15.09.2018
are, accordingly, hereby quashed. The
petitioner shall be reinstated in service and
shall be paid salary. It is however, left open
for the respondents to proceed afresh in
accordance with law, if so desire.
----------
(2024) 3 ILRA 741
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI,
J.
HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 28394 of 2021
connected with