COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 2749 of 2001 (Old No. 34483 of 2000) Sona ......... Petitioner Versus Mukhya Karyapalak Adhikari, Uttar Pradesh Khadi Tatha Gramodyog Board, Lucknow and others. ........... Respondents Sri Rajendra Dobhal, learned counsel for the petitioner. Smt. Beena Pande, learned counsel for the respondent No.1. Dated: 03.04.2008 Hon’ble P.C. Verma, J. By means of this petition the petitioner has prayed for issue of writ in the nature of certiorari quashing the impugned order dated 22.06.2000 passed by respondent No.1, contained in Annexure No. 16 to the writ petition, by which the petitioner has been dismissed from service. 2. The facts of the writ petition, in brief, are that the petitioner was appointed as Spinning Supervisor in Khadi Tatha Gramodyog Board, Uttar Pradesh on 20.03.1993 and he was posted in blanket factory of the Board at Najibabad (District-Bijnor, U.P.) In the month of August 1996 consequent upon his transfer the petitioner joined his services on the same post at Chamba, District- Tehri Garhwal. Thereafter in pursuance of the order dated 18.02.1997 passed by respondent No.2 the petitioner joined his duties in Production Centre Bhatwari, District-Uttarkashi on 20.02.1997. The respondent No.2 directed the petitioner on 29.03.1997 to take additional charge of Superintendent Production Incharge, Bhatwari as Shri R.K.Puri, who was working on the said post, was due to retire on 31.12.1997. Shri R.K.Puri did not hand over the charge of Superintendent Production to the petitioner in compliance of the order dated 29.03.1997 passed by respondent No.2. Thereafter on 02.09.1997 the petitioner was given the charge of Production Centre Bhatwari, District-Uttarkashi. On 08.01.1998 the petitioner was asked to hand over the charge of Production Centre Bhagwati, District- Uttarkashi to Shri Dilwan Singh Rawat, Weaving Teacher. The petitoner handed over the charge to Shri Dilwan Singh Rawat on 16.01.1998. Thereafter on 15.04.1999 the respondent No.1 passed an order placing the petitioner under suspension on the ground that the petitioner has misappropriated government amount of Rs. 14,650/- and further Rs. 18,600/-, total Rs. 33,250/-. Sri J.P.Thapliyal, Regional Superintendent Udyog, Chamba, District-Tehri Garhwal was appointed Inquiry Officer in the matter. He was also required to file charge-sheet against the petitioner after getting its approval from respondent No.1. The inquiry officer without getting approval from the respondent No. 1, filed charge-sheet against the petitioner on 26.07.1999 in which three charges were levelled against him. The said charge-sheet was served upon the petitioner on 23.08.1999. The petitioner made a presentation to the Joint Chief Executive Officer, Uttar Pradesh Khadi Tatha Gramodyog Board on 26.04.2000 stating therein that the petitioner has not been given any information about the inquiry report by the inquiry officer and if the inquiry report has been submitted, a copy of the said report be given to the petitioner. 3. Thereafter on 02.05.2000 the petitioner was served with a show cause notice dated 19.04.2000 issued by the respondent No. 1 through respondent No.3 to the effect that the charge levelled against the petitioner has been proved in the inquiry, conducted by the inquiry officer and the allegations against the petitioner are serious in nature and if the petitioner wants to say anything in his defence, he may come within 10 days to the office of respondent No.1 to explain his case and if he does not give any explanation, a further action regarding the punishment will be taken against the petitioner. In the said show cause notice the respondent No.1 has not mentioned the date of inquiry nor the inquiry report has been attached with the said letter. The petitioner made a representation to the respondent No. 1 on 04.05.2000 to the effect that the inquiry report has not been attached with the show cause notice and petitioner is not in position to give his reply. The respondent No. 1 did not reply to the petitioner and on 22.06.2000 passed an order dismissing him from his service and further directed to recover the amount, which alleged to have been embezzled by the petitioner. 4. The only ground taken by the petitioner challenging the impugned order is that the entire inquiry against the petitioner has been conducted in very arbitrary manner and without giving any opportunity to him. Further, the provision of Article 311 (2) of the Constitution of India has been violated. In the departmental proceeding the petitioner has not been supplied copy of inquiry officer's report before passing the impugned order of dismissal of the petitioner and, as such, the impugned order is against the principle of natural justice and is illegal. 5. In this petition despite several opportunities the respondents have not filed counter affidavit till date. 6. I have heard the learned counsel for the parties and perused the material on record. It reveals from the record that after giving charge sheet dated 26.07.1999 no information was given to the petitioner regarding the inquiry by the inquiry officer and the inquiry proceeding was held ex parte and conducted without giving any opportunity to the petitioner. 7. There is specific provision under Article 311 of the Constitution of India that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. 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." 8. The Apex Court has held in the case of Union of India and others versus Mohd. Ramzan Khan, reported in (1991) 1 Supreme Court Cases, Page 588 that non-furnishing of the inquiry report to the delinquent would amount to violation of rules of natural justice. In Para 18 of the judgment of the aforesaid case, the Apex Court has held as under:- "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.'' 9. The same view was affirmed by five-judge- bench of the Apex Court in the case of Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, reported in (1993) 4 Supreme Court Cases, Page 727. The Apex Court has held in Para- 33 of the aforesaid judgment as under:- "33. Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the enquiry officer's report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges, before the Forty-second Amendment of the Constitution, the state at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the Forty-second Amendment of the Constitution which abolished the second stage of the enquiry, it was mooted but not decided in E. Bashyan case [(1988) 2 SCC 196] by the two learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K.C. Asthana case [(1988) 3 SCC 600] no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan case [(1991) 1 SCC 588] was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan case that this Court laid down the law. That decision made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20,1990. The law laid down was not applicable to the orders of punishment passed before that date applicable to the orders of punishment passed after November 20,1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the enquiry officer's report to the employee. The only exception to this was where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee. 10. The Hon'ble Supreme Court has further held in paras 59 & 60 of the aforesaid judgment as under:- "59. Even prior to the Constitution (Forty- second Amendment) Act the entire proceedings was considered as an integral whole and on receipt of the report of the enquiry officer the disciplinary authority was required to consider the record and to arrive at a provisional conclusion thereon; a show- cause notice with the proposed punishment was a part of the reasonable opportunity envisaged under Article 311(2). The supply of the copy of the report at that state was made an integral part of the reasonable opportunity. On receipt thereof the delinquent officer got the opportunity to controvert even the findings recorded, their correctness and legality, showing that the charges which were held proved by the enquiry officer could not be sustained for the reasons set forth in the reply to the show cause notice. Alternatively he was entitled to show mitigating or extenuating circumstance including previous conduct or record of service for dropping the action or to impose lesser punishment. 60. Section 44 of the Forty-second Amendment Act did away with supply of the copy of the report on the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to consider the material on record, the evidence along with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon." 11. In view of above settled position of law it is clear that without giving copy of inquiry report to the petitioner, the punishment order cannot be sustained in the eye of law. The impugned order dated 22.06.2000 is set aside. However, the respondents may pass fresh order after giving copy of inquiry report and opportunity of hearing to the petitioner. 12. With the aforesaid observation, the writ petition is disposed of finally. (P.C.Verma,J.) 03.04.2008 P.Singh