# O.P. Trivedi v. Chairman, Bhagirath Gramin Bank & Ors

- **Citation:** (2023) 7 ILRA 321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-07
- **Case number:** Writ-A No. 8256 of 1992
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/o-p-trivedi-v-chairman-bhagirath-gramin-bank-ors-50431
- **Pages:** 14

## Headnote

A. Service Law - Dismissal - Service
benefits - Bhagirath Gramin Bank Staff
Service Regulation, 1980 - 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. (Para 23)

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
322 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry officer. On receipt of Inquiry report,
it is incumbent on the part of punishing
authority to supply a copy of the inquiry
report. (Para 23)

In the present case, the petitioner was selected
and appointed on the post of Junior Clerk on
10.-02.1983 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 08.05.1984 which
was followed by a charge- sheet dated
09.07.1994 indicating therein the certain the
charges of embezzlement of Banks money,
breach
of
discipline
and
indolence
and
intentional negligence in discharge of duties.
Vide order dated 11.02.1991, the services of the
petitioner has been dismissed which has been
approved/upheld by the disciplinary authority.
(Para 24)

B. The compliance of natural justice in
domestic/disciplinary inquiry is necessary
has long been established. Even there are
no
specific
statutory
rule
requiring
observance
of
natural
justice,
the
compliance of natural justice is necessary.

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. (Para 27)

If an inquiry is vitiated by violation of
principles of natural justice, it cannot be
characterized as a proper domestic inquiry
held. (Para 22)

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. When the
enquiry officer is not the disciplinary authority,
the delinquent employee has a right to receive a
copy of the enquiry officers report before the
disciplinary authority arrives at its conclusion
w.r.t. the guilt or innocence of the employee
with regard to the charges levelled against him.
That right is a part of the employees right to
defend himself against the charges levelled
against him. (Para 25, 26)

In present case, prior to passing of the dismissal
order, neither the petitioner has been given any
show cause notice nor enquiry report dated
10.12.2990 has been given. The petitioner has
also
not
been
afforded
any
adequate
opportunity prior to the issuance of the order
dated 11.02.1991 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.

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 aforesaid
has not been

## Text

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7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
321
matter the order of suspension has been
passed by the Disciplinary Authority only
on the recommendation of the Tehsildar
who has been nominated as an Inquiry
Officer vide order dated 27.02.2023 for
conduction of fair inquiry, wherein it has
been presumed by the Inquiry Officer that
if the petitioner will remain at the services
of posting where he is presently posted, he
may tamper evidences which may not
culminate into fair inquiry.

11. The recommendation made by the
Inquiry Officer is different as made in the
case relied upon by the learned counsel for
the petitioner and as such, the case of V.N.
Daipuria is not applicable in the instant
matter, since the recommendations for
suspension has been made by the Inquiry
Officer under the disciplinary proceedings
initiated against the petitioner not by any
other authority who is not related to
disciplinary proceedings as in the case
mentioned by learned counsel for the
petitioner.

12. In view of the aforesaid facts and
circumstances, there is hardly any scope for
interference in the order dated 21.03.2023
which impugned the present petition and as
such, the writ petition is liable to be and is
accordingly, dismissed.

13. However, it is made clear that the
respondent no. 2 may take every steps for
finalizing the disciplinary proceedings as
initiated
against
the
petitioner,
as
expeditiously
as
possible,
preferably,
within a period of four months from the
date of production of certified copy of this
order.

14. It is however made clear that the
petitioner will extend all possible support
in favour of the respondent no. 2 for
arriving over the directions as passed
above.
----------
(2023) 7 ILRA 321
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 8256 of 1992

O.P. Trivedi ...Petitioner
Versus
Chairman, Bhagirath Gramin Bank & Ors.
 ...Respondents

Counsel for the Petitioner:
M.K. Shukla, Ashish Mishra, Deo Raj Singh,
K.C. Jauhari, Ramesh Kumar Srivastava,
V.P. Misra, Vijai Kumar

Counsel for the Respondents:
C.S.C., A.K. Chaturvedi

A. Service Law - Dismissal - Service
benefits - Bhagirath Gramin Bank Staff
Service Regulation, 1980 - 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. (Para 23)

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
322 INDIAN LAW REPORTS ALLAHABAD SERIES
inquiry officer. On receipt of Inquiry report,
it is incumbent on the part of punishing
authority to supply a copy of the inquiry
report. (Para 23)

In the present case, the petitioner was selected
and appointed on the post of Junior Clerk on
10.-02.1983 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 08.05.1984 which
was followed by a charge- sheet dated
09.07.1994 indicating therein the certain the
charges of embezzlement of Banks money,
breach
of
discipline
and
indolence
and
intentional negligence in discharge of duties.
Vide order dated 11.02.1991, the services of the
petitioner has been dismissed which has been
approved/upheld by the disciplinary authority.
(Para 24)

B. The compliance of natural justice in
domestic/disciplinary inquiry is necessary
has long been established. Even there are
no
specific
statutory
rule
requiring
observance
of
natural
justice,
the
compliance of natural justice is necessary.

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. (Para 27)

If an inquiry is vitiated by violation of
principles of natural justice, it cannot be
characterized as a proper domestic inquiry
held. (Para 22)

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. When the
enquiry officer is not the disciplinary authority,
the delinquent employee has a right to receive a
copy of the enquiry officers report before the
disciplinary authority arrives at its conclusion
w.r.t. the guilt or innocence of the employee
with regard to the charges levelled against him.
That right is a part of the employees right to
defend himself against the charges levelled
against him. (Para 25, 26)

In present case, prior to passing of the dismissal
order, neither the petitioner has been given any
show cause notice nor enquiry report dated
10.12.2990 has been given. The petitioner has
also
not
been
afforded
any
adequate
opportunity prior to the issuance of the order
dated 11.02.1991 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.

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 aforesaid
has not been done and punishment order
imposing major penalty has been passed, 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. (Para 28)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of Uttaranchal Vs Kharak Singh, (2008) 8
SCC 236 (Para 14)

2. Chamoli District Co-operative Bank Vs
Raghunath Singh Rana, AIR 2016 SC 2510 (Para
14)

3. Om Prakash Gond Vs St. of U.P., 2019 4 ADJ
386 (Para 14)

4. Vikalp Kumar Vs St. of U.P., 2019 (11) ADJ
267 (Para 14)

Present petition challenges orders of
dismissal
dated
11.02.1992
and
08.09.1992.
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
323
(Delivered by Hon'ble Irshad Ali, J.)

1. 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.

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

"(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

(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;

(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.

(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

(e) allow the writ petition with
costs."

3. 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 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.

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.

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.

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

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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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 non-making the
representation to the punishing authority.

13. 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.

14. In support of his submissions,
learned counsel for the petitioner relied
upon the following judgments:
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
325

(i) State of Uttaranchal v. Kharak
Singh reported in 2008 Vol. 8 SCC Page236

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

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

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

15. 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.

16.

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.

17.

Learned
counsel
for
the
respondents 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.

18. 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.

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

20. 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.

21. 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.

22. 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:

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

10. The following observations
and principles laid down by this Court in
Associated Cement Co. Ltd. v. The
Workmen and Anr. are relevant:
326 INDIAN LAW REPORTS ALLAHABAD SERIES

"... ... 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. ... .....

..... ..... 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 crossexamination 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."

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.

(ii)
Chamoli
District
Cooperative Bank (supra):

18. It is also relevant to note that
after submission of reply dated 04.02.1993,
Disciplinary Authority issued a show-cause
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 when the statutory provisions
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
327
specifically
provides
that
disciplinary
proceedings shall be conducted with due
observations of the principles of natural
justice.

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:-

"... 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."

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:-

"......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......"

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:-

".....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.

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:

"... ... 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
328 INDIAN LAW REPORTS ALLAHABAD SERIES
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. ... .....

..... 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 crossexamine 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."

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

"(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.

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 opportunity of making
representation on the penalty proposed and
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
329
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.

* * *

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.

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 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."

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."

(iii) Om Prakash Gond (supra):-

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.
330 INDIAN LAW REPORTS ALLAHABAD SERIES

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:

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

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

(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.

(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."

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.

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.

(iv) Vikalp Kumar (supra):-

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 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.

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
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
331
in respect of imposition of major penalty
have been followed or not.

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.

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.

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:-

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

"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."

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 Fortysecond 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
332 INDIAN LAW REPORTS ALLAHABAD SERIES
delinquent would, therefore, be entitled to
the supply of a copy thereof. The Fortysecond Amendment has not brought about
any change in this position.

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

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 non-furnishing of the report would
amount to violation of rules of natural
justice and make the final order liable to
challenge hereafter."

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.

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.