Rajuddin vs Jamia Millia Islamia
2007 Latest Caselaw 698 Del

JUDGMENT

Hima Kohli, J.

Page 1053

1. The present writ petition is filed by the petitioner praying inter alia for issuance of appropriate writ of certiorari and mandamus for quashing the order dated 29.1.1992 passed by the respondent by which a penalty was imposed upon the petitioner after considering the report of the Inquiry Officer, and it was ordered that the petitioner be reduced to the lower grade for a period of 5 years w.e.f. 31.1.1992, as also for directions to the respondent to give all consequential benefits including further promotion to the post of Assistant, etc., from the date the petitioner's juniors have been promoted along with arrears of salaries, etc.

Page 1054

2. In a nutshell, the facts of the case are that in the year 1972, the petitioner was appointed as an Attendant with the respondent/University. In 1977, he was promoted as a Junior Clerk and subsequently regularized. In January, 1986, the petitioner was promoted as a temporary Senior Clerk. On 16.7.1990, the petitioner was served with a charge-sheet by the respondent/University under Regulation XIII (29), (30), (31), (32) & (33) of the University for holding an inquiry against the petitioner on the ground that while functioning as Junior Clerk in the Office of the Dean, Faculty of Social Sciences, he received a bribe of Rs. 600/- from a scholarship holder, Miss Raj Rani Thakur, saying that this amount shall be paid to someone in the Accounts Office and that on intervention by the Accounts Officer, the sum of Rs. 600/- received by the petitioner was paid back to the complainant. The petitioner filed a reply to the aforesaid charge-sheet on 30.7.1990 wherein he denied the charges and requested for supply of documents. Vide Memorandum dated 25th March, 1991, the respondent intimated the petitioner that it proposed to hold an oral inquiry to enquire into the charges framed against the petitioner and he was directed to appear before the Inquiry Officer on 27th March, 1991 at 2.00 P.M. The petitioner appeared before the Inquiry Officer on 27th March, 1991. It is claimed by the petitioner that his statement was recorded against his protest and that thereafter order of punishment was passed against him, reducing him to a lower grade for a period of 5 years w.e.f. 3.1.11992.

3. Counsel for the petitioner argued that the inquiry proceedings were conducted by the respondent in complete violation of the principles of natural justice and that the respondent failed to follow their own Regulation XIII (33). The said regulation is reproduced hereinbelow for ready reference:

XIII(33) Procedure for Imposing Penalties

No order imposing any penalty on an employee shall be passed, except after-

(a) the employee is informed in writing of the proposal to take action against him and of the allegations on the basis of which it is proposed to be taken and is given an opportunity to make any representation he may wish to make; and

(b) Such representation, if any, is taken into consideration by the authority imposing the penalty.

Provided that no order imposing the punishment amounting to dismissal or termination of service of an employee in permanent service shall be passed except after an enquiry held in the manner hereinafter provided:

No order of dismissal or termination services shall be passed on a permanent employee of the Jamia (other than an order based on facts which had led to his conviction in a criminal Court martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged together with a statement of the allegation on which each Page 1055 charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defense and to state whether he desires to be heard in person. If he so desires of if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and 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 officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. On completion of the enquiry after the authority empowered to impose the penalty has considered the defense and arrived at a provisional conclusion in regard to the penalty to be imposed, the person charged shall, if the penalty is dismissal or termination of service, be called upon to show cause within a reasonable time not ordinarily exceeding a fortnight against the particular penalty to be imposed, any representation submitted by the person charged shall be duly taken into consideration before final orders are passed.

This rule shall not apply where the person concerned had absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provision of the Regulation may, in exceptional cause for special and sufficient reason to be recorded in writing be waived, where there is a difficulty in observing exactly the requirements of the Regulation and those requirements can be waived without injustice to the person charged.

4. It was further submitted that despite repeated requests, the petitioner was not supplied documents relied upon in the inquiry and that prosecution witnesses were examined without the participation of the petitioner in the inquiry and behind his back, thus denying him the right to cross-examine prosecution witnesses. Lastly, it was argued that the petitioner was not given an opportunity to lead evidence in his defense and even the inquiry report was not supplied to the petitioner nor was any notice to show cause issued to him before issuance of the order of punishment. In support of his arguments, learned Counsel for the petitioner placed reliance on the following judgments:

1. Union of India and Ors v. Mohd. Ramzan Khan reported as ; and

2. Managing Director, ECIL, Hyderabad v. B. Karunakar reported as JT 1993 (3) SC 193.

5. On the other hand, learned Counsel for the respondent/University submitted that there was a clear discretion in the procedures to be followed by the respondent under the relevant regulation, for the reason that Page 1056 while in the case of punishments like dismissal/termination of service, a comprehensive inquiry was required to be undertaken, for other punishments like reduction to a lower grade, a full-fledged inquiry was not necessary. Learned Counsel for the respondent sought to rely upon the same Regulation XIII (33) and its proviso, to substantiate the aforesaid submission. It was further stated that the aforesaid Regulation has not been challenged by the petitioner as ultra vires and hence the procedure adopted by the respondent under the same cannot be questioned by the petitioner.

6. On merits, counsel for the respondent submitted that a perusal of the enquiry report shows that there was sufficient material on the record for the Inquiry Officer to make the deductions that he did and in view of the fact that the deposition of the summoned witness, i.e. the Clerk of the Accounts Office, corroborated the statement of the complainant, the petitioner was rightly found to be guilty of the charge levelled against him. In respect of the plea taken by the petitioner with regard to non-supply of the enquiry report, it was contended that the petitioner has failed to show any prejudice that was caused to him by non-supply of the said report, except for mechanical allegations made in the writ petition. In support of his case, learned Counsel for the respondent placed reliance on the following judgments:

1. Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar, etc. etc. reported as ;

2. State of UP v. Harendra Arora & Anr. reported as ; and

3. P.D. Agrawal v. State of Bank of India and Anr. reported as (2006) 8 SCC 776.

7. In rebuttal to the pleas raised by the respondent, learned Counsel for the petitioner argued that the contention of the respondent that since the penalty imposed on the petitioner is a minor penalty, therefore, the respondent is not required to hold a comprehensive inquiry or to permit cross-examination, etc., is misplaced, as a perusal of the documents including the charge-sheet, Office Order appointing the Inquiry Officer and the Memorandum dated 25.3.1991 make it manifest that the respondent was holding a regular inquiry under the Regulations, and thus depriving the petitioner of his right to cross-examine the witnesses was a material irregularity in the inquiry proceedings. It was submitted that the inquiry report was disclosed for the first time only when it was filed by the respondent along with the counter affidavit to the writ petition. It was further urged that no distinction could be drawn at the stage of deciding to hold an inquiry on the basis as to whether the same would result in imposing a major penalty or a minor penalty, as the end result could not be anticipated at the time of issuance of charge-sheet, nor could the same be justified on hindsight.

Page 1057

8. I have heard counsels for the parties and taken into consideration the pleadings as also the evidence placed on the record. I have also given my thoughtful consideration to the judgments relied upon by the learned Counsels for the parties. Before proceeding to deal with the rival contentions of the parties, it will be appropriate to take into consideration the exact nature of the complaint made by the complainant against the petitioner which forms the basis of issuance of the charge-sheet to the petitioner, as also the deposition of the witnesses before the Inquiry Officer.

9. In the oral inquiry, statement of the complainant was recorded by the Inquiry Officer. In her deposition she stated that she was a student of B.A. First Year in the respondent/University and had applied for scholarship; that after she left the University the next year, the petitioner approached the complainant at her residence and told her that scholarship of Rs. 1,200/- was sanctioned in her favor and that he would help her in getting the said amount provided she paid him Rs. 600/- out of the said amount. It was stated that thereafter, the complainant visited the University when the petitioner gave a slip to her to give to one Mr. Jabir Ali Khan in the Accounts Office, who in turn obtained her signatures on a stamped receipt and handed over a cheque of Rs. 1,200/- to her. Upon encashing the said cheque, she visited the petitioner at his residence, as he was not in his office, and handed over Rs. 600/- to him. She further deposed that the said amount was taken by the petitioner under the garb of paying the same to Mr. Jabir Ali Khan. However, subsequently, the complainant learned that the said person had not received any money whatsoever and that the entire amount had been retained by the petitioner. Thereupon, she made a written complaint to the Finance Officer of the respondent on the same afternoon. Later on, the complainant was approached on behalf of the petitioner and the amount of Rs. 600/- was returned to her which fact was also brought to the notice of the Finance Officer of respondent/University.

10. The statement of the clerk in the Accounts Office, Mr. Jabir Ali Khan was also recorded and his deposition corroborated the aforesaid statement of the complainant. Finally, the statement of the petitioner was recorded who confirmed having met the complainant and having given a note to her for collecting the scholarship awarded to her from Mr. Jabir Ali Khan, but he denied having taken any amount from her or meeting her later on.

11. On the basis of the deposition of the witnesses including the complainant, recorded before the Inquiry Officer, the Executive Council of respondent/University came to the conclusion in its meeting held on 3.1.1992 that the complainant was justified in her complaint and that the aforesaid misconduct of the petitioner was duly established. Thus, strict action was decided to be taken against the petitioner and a penalty of reduction to lower grade for a period of five years was imposed upon him.

12. The core issue for decision in the present writ petition is as to whether, in view of the fact that a copy of the inquiry report was not furnished to the petitioner to afford him an opportunity to make a representation before imposition of a penalty on him in terms of the impugned order dated 29.1.1992, and in view of failure on the part of the Inquiry Officer to Page 1058 grant an opportunity to the petitioner to lead evidence and cross-examine the prosecution witnesses, principles of natural justice were violated by the respondent and whether the same resulted in causing such a prejudice to the petitioner so as to vitiate the entire inquiry proceedings and the consequent penalty imposed on the petitioner.

13. Counsel for the petitioner placed reliance on a Constitution Bench judgment of the Supreme Court in the case of ECIL (supra) to state that denial of a copy of the inquiry report to the petitioner amounts to denial of reasonable opportunity and consequently a breach of the principles of natural justice, and as the same was contrary to the procedure prescribed in Regulation XIII (33), the inquiry report itself is liable to be quashed and the order inflicting penalty on the petitioner flowing there from, is liable to be set aside. A perusal of the aforesaid judgment shows that the Supreme Court, while examining the position of law on the issue of entitlement of a delinquent employee to a copy of the report of the Inquiry Officer and the consequences of non-furnishing the same, also discussed the effect of non-furnishing of the inquiry report on the order of punishment and the relief that ought to be granted to the delinquent employee in such circumstances and gave the following findings:

7. (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. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is a mechanical ritual the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. Page 1059 If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the Courts/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate of revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

14. In Harendra Arora (supra), while discussing the principles of reasonable opportunity and natural justice in a case where the inquiry report had not been furnished to the delinquent officer, the Supreme Court referred to the judgment rendered in the case of ECIL (supra) and held as below:

11. From a minute reading of the decision in the case of ECIL, it would appear that out of the seven questions framed, while answering question Nos. (vi) and (vii), the Constitution Bench laid down that the only exception to the answer given in relation to those questions was where the service rules with regard to the enquiry proceedings themselves made it obligatory to supply a copy of the report to the employee. While answering the other questions, much less answer to question No. (v) which relates to prejudice, the Bench has nowhere categorically stated that the answer given would apply even in a case where there is requirement of furnishing a copy of the enquiry report under the statutory rules. As stated above, while answering question Nos. (vi) and Page 1060 (vii), the Bench has expressly excluded the applicability of the same to the cases covered by statutory rules whereas such exception has not been carved out in answer to question No. (v) which shows that the Bench having found no difference in the two contingencies - one covered by Article 311(2) and another covered by statutory rules - has not made any distinction and would be deemed to have laid down the law uniformly in both the contingencies to the effect that if enquiry report is not furnished, the same ipso facto would not invalidate the order of punishment unless the delinquent officer has been prejudiced thereby more so when there is no rationale for making any distinction therein.

12. Thus, from the case of ECIL, it would be plain that in cases covered by the constitutional mandate, i.e., Article 311(2), non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein.

13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing....

15. Recently, the Supreme Court, in P.D. Agrawal (supra), held as below:

39. ... The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala and Ors. v. S.K. Sharma and Rajendra Singh v. State of M.P. , the principle of law is Page 1061 that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi v. Chairman, J. & K. Bank Ltd. and Ors. and State of U.P. v. Neeraj Awasthi and Ors. . See also Mohd. Sartaj v. State of U.P..

16. In the aforesaid case, while adverting to the judgment of the Supreme Court in the case of Union of India v. Tulsiram Patel reported as , the Supreme Court observed that the court had not laid down a law in absolute terms that violation of principles of natural justice would be read in the equality clause contained in Article 14 of the Constitution of India. Reference was also made to another judgment in the case of State Bank of Patiala v. S.K. Sharma reported as wherein it was held as below:

32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of Sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.

If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases.

Page 1062

17. In the case of Mohd. Ramzan Khan (supra), the Supreme Court, while adverting to an earlier pronouncement on the meaning of 'reasonable opportunity', referred to the judgment of the Federal Court in Secretary of State for India v. I.M. Lall reported as which summed up the meaning of 'reasonable opportunity' as below:

The reasonable opportunity envisaged by the provision under consideration includes-

(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defense; and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposed to inflict one of the three punishments and communicates the same to the government servant.

18. As observed by the Supreme Court in the case of P.D. Agrawal (supra), a distinction has to be made between total violation of natural justice i.e. the rule of audi alterem partem and violation of a facet of the said rule. In other words, a distinction has to be made between 'no-opportunity' and 'no adequate opportunity', 'no notice'/'no hearing' and 'no fair hearing'.

19. Turning now to the facts of the present case, it has to be examined as to whether non-furnishing of the inquiry report and failure to grant a reasonable opportunity to the petitioner, amounts to non-compliance of a procedural provision so fundamental in nature as to cause grave prejudice to the petitioner and vitiate the entire inquiry proceedings and make the order of penalty a nullity. It is an admitted position that the inquiry report was not furnished to the petitioner before the Executive Council imposed a penalty on him. In fact, the inquiry report saw the light of the day for the first time when the petitioner was served with the same along with a copy of the counter affidavit filed by the respondent in the present proceedings.

20. In the present case, considering the fact that the incident itself was disputed by the petitioner and since the incident as reported by the complainant formed the only basis of the charge sheet, absence of a formal opportunity to cross-examine the witnesses who deposed before the Inquiry Officer and to adduce evidence in support of his case, vitiates the inquiry proceedings as also invalidates the decision taken on the basis of the said inquiry proceedings. The records reflect that the petitioner had demanded an opportunity to adduce evidence to establish the veracity of his version and shake the credibility of the statement of the witnesses produced in the enquiry proceedings, both, prior to and after the inquiry proceedings were initiated. The records also reflect that the respondent failed to furnish a copy of the complaint, copy of the documents of relevant information by the Accounts Office and a copy of the statement of the complainant where she Page 1063 stated that the amount had been received back by her, so as to facilitate the petitioner in submitting his defense and in establishing his case. In such circumstances, there was no opportunity afforded to the petitioner to meet the allegations levelled against him in the charge sheet.

21. The Supreme Court had an opportunity to elucidate as to whether violation of each and every facet of the principles of natural justice has the effect of vitiating the inquiry, in the case of K.L. Tripathi v. State Bank of India and Ors. reported as and it was reiterated in the case of Harendra Arora (supra), as below:

18. In the case of K.L. Tripathi v. State Bank of India and Ors. , while considering the question whether violation of each and every facet of principles of natural justice has the effect of vitiating the inquiry, this Court laid down that the inquiry held and the punishment imposed cannot be said to be vitiated on account of an opportunity of cross-examination of certain witnesses not having been afforded to the delinquent and observed thus:

The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is in dispute, right of cross-examination must inevitable form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances, there is no requirement of cross-examination to be fulfillled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate of vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the Version or the credibility of the statement.

22. The petitioner had taken a categorical stand that in the absence of furnishing a copy of the inquiry report and in the absence of issuance of at least a notice to show cause to him before the imposition of an order of penalty, he was deprived of an opportunity to submit his defense before the disciplinary authority. After the proceedings were held by the Inquiry Officer on 27.3.1991, nothing was heard from the respondent till the petitioner received the impugned order dated 21.1.1992. Thus, it is a clear case where no opportunity was given to the petitioner to defend himself and no hearing was afforded to him before imposing the penalty on him. The charges of mis-conduct levelled against the petitioner were on the basis of a complaint not emanating from within the department of the respondent, but from an independent source, namely, a student of the respondent/ University, who made a complaint against the petitioner. After a charge-sheet was issued against the petitioner, he was afforded Page 1064 an opportunity to show cause. The petitioner's reply dated 30th July, 1990 shows that he had specifically denied the incident which forms the basis of the charge-sheet. The records also reflect that the Inquiry Officer called upon the petitioner to appear before him in the post-lunch session on 27.3.1991, while the other two witnesses, including the complainant were summoned two days earlier for recording their statements. At no stage was the petitioner confronted with the deposition of the said witnesses, much less given copies thereof. Thus, it cannot be denied that the petitioner was prejudiced by the non-observation of the rule of affording an opportunity to him to cross-examine the witnesses produced against him and of examining himself or other witnesses in support of his defense. He was also prejudiced by failure on the part of the respondent to furnish a copy of the inquiry report to him and affording an opportunity of hearing to him before acting on the inquiry report. Since these are procedural improprieties fundamental in nature, theory of substantial compliance is of no avail to the respondent.

23. In view of the fact that neither the Memorandum dated 16th July, 1990 nor the Office Order dated 30th October, 1990 specify the nature of penalty proposed to be imposed on the petitioner, there is merit in the submission of the counsel for the petitioner that the respondent cannot be permitted to make good the deficiency in the procedure required to be adopted in the conduct of the enquiry by drawing a distinction on hindsight on the strength of the relevant regulations merely because ultimately, the penalty imposed on the petitioner was not a major penalty of dismissal or termination of service but a minor penalty. The prejudice has to be examined at the stage of initiation of the inquiry proceedings and not at a later or final stage. Merely because it is contended by the respondent that there was no procedure prescribed in the regulations for imposing minor penalty, does not mean that the petitioner can be deprived of being afforded even an adequate opportunity to defend himself before imposition of a minor penalty.

24. This is a case where not only have the principles of natural justice been breached but it is evident that grave and real prejudice has been caused to the petitioner. Failure on the part of the Inquiry Officer to grant an opportunity to the petitioner to establish his innocence by permitting him to cross-examine the witnesses and adduce evidence, failure to furnish a copy of the inquiry report to the petitioner, as also failure to afford him an opportunity to make a representation to the disciplinary authority as to why the proposed punishment should not be inflicted upon him, is fatal to the case of the respondent. The same have caused grave prejudice to the petitioner and have resulted in vitiating the entire inquiry proceedings.

25. In view of the facts and circumstances of the case and the conclusion arrived at hereinabove, the entire inquiry proceedings and the impugned order 29.1.1992, passed by the disciplinary authority, namely, the Executive Council of the respondent, are set aside. However, it is clarified that this does not preclude the respondent from holding a fresh inquiry against the petitioner from the stage of issuance of the memorandum of charges, in accordance with law. With these observations, the writ petition is allowed. No order as to costs.