Subhash Chandra Asthana (State) vs State of U.P. and Others

Ritu Raj Awasthi, J.—Heard learned Counsel for the Petitioner as well as learned Standing Counsel and perused the records.

The writ petition has been filed challenging the order of punishment dated 2nd of January, 1992 by which the Petitioner was dismissed from service from the post of Moharrir Judicial Gr. II.

The main ground of attack of the Petitioner''s counsel is that the impugned punishment order dated 2nd of January, 1992 has been passed in gross violation of principles of natural justice, as neither any enquiry report was provided to the Petitioner nor any opportunity to rebut the findings of the enquiry report was provided to the Petitioner.

It is submitted by the learned Counsel for the Petitioner that in the case of Union of India and others Vs. Mohd. Ramzan Khan, it has been held by the Hon''ble Apex Court that non supply of the copy of the enquiry report to the delinquent employee amounts to violation of principles of natural justice as he is denied adequate opportunity of defence. The relevant observations of the Hon''ble Apex Court are quoted below:

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.

It is further submitted by the learned Counsel for the Petitioner that the Hon''ble Apex Court relying on the decision of the Union of India v. Mohd. Ramzan Khan (supra) in the case of Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls -2 and Ors. 2003 SCC 1033 has held that non supply of the enquiry report amounts to violation of principles of natural justice. The Hon''ble Apex Court while directing the disciplinary authority to furnish a copy of the enquiry report to the Appellant observed as under:

We, therefore, direct the disciplinary authority to furnish a copy of the enquiry report to the Appellant and then permit her to submit her representation/explanation to the same and pass final orders thereafter. However, this will not lead to reinstatement or to back wages inasmuch as this Court has decided in the case of Managing Director; ECIL, Hyderabad V. B. Karunakar that there need be no reinstatement nor back wages need be followed. We, therefore, remit the matter to the disciplinary authority, being Secretary, Shibarampur Madhyamik High School for Girls, Shibarampur, Calcutta 700 061 for the aforesaid purpose. The Termination order already passed will remain, but subject to the result of the fresh consideration as directed above.

The above said disciplinary authority is directed to give a copy of the enquiry report to the Appellant within one month from the receipt of a copy of this order and thereafter grant four weeks for filing an explanation. On receiving the same the disciplinary authority may decide the matter within six weeks thereof. If the Appellant is entitled to any subsistence allowance from the date of here removal till the date of termination already made, she may make appropriate application therefore. If the application is so made, the disciplinary authority will consider the same on its own merits.

Learned Standing Counsel while justifying the impugned order submitted that at that time under the relevant service rules there was no provision for providing the enquiry report to the Petitioner, therefore, the same was not supplied to him.

It is further submitted that in case the Petitioner had asked for the enquiry report, the same would have been given to him.

Learned Counsel for the Petitioner has not raised any other ground.

The only question required for consideration before this Court is as to whether the enquiry report was necessary to be supplied to the Petitioner before passing of the impugned order or not and the effect of the non supply of the said enquiry report.

I have considered various submissions made by the parties'' counsel.

In para 36 of the counter affidavit, it has been admitted by the opposite parties that the enquiry report was not given to the Petitioner before passing of the impugned order and it is mentioned that since there is no provision under the relevant service rules, therefore, there was no requirement for supply of the same.

In the case of Union of India v. Mohd. Ramzan Khan (supra), it was held by the Hon''ble Apex Court that non supply of the enquiry report amounts to violation of principles of natural justice and it would render the impugned punishment order illegal.

The judgment in the case of Union of India v. Mohd. Ramzan Khan (supra) was pronounced on 20th of November, 1990, therefore, it is a clear legal position that the supply of the enquiry report before passing of the impugned punishment order is necessary. In the present case, the punishment order was passed on 2nd of January, 1992 i.e. after pronouncement of the judgment in the case of the Union of India v. Mohd. Ramzan Khan (supra), as such, I am of the considered opinion that the impugned punishment order is not sustainable in the eyes of law as it suffers from the violation of the principles of natural justice.

The writ petition is, therefore, allowed and the impugned punishment order dated 2nd of January, 1992 is hereby quashed with the direction that the opposite parties shall issue/serve show cause notice along with the copy of the enquiry report to the Petitioner calling upon the Petitioner to submit his reply and the Petitioner shall submit the reply to the show cause notice thereafter within a reasonable time as fixed by the competent authority. The opposite parties shall thereafter take appropriate decision in accordance with law, expeditiously, say within a period of two months from the date of submission of the reply by the Petitioner.