Judgment:
Somasundaram, J.
1. This writ appeal has been filed against the order in W.P. No. 960 of 1982 dismissing the writ petition praying for the issue of a writ of certiorarified mandamus to quash the order of the first respondent dated 12.3.1977 as confirmed by the order of the 2nd respondent in T.S.E. Case No. 37 of 1979 dated 14.7.1981 and to direct the first respondent to reinstate the appellant as a clerk with effect from 26.2.1976 with all monetary and service benefits.
2. The appellant was a clerk in the first respondent Co-operative Urban Bank. On 28.2.1976 a memo of charge listing out 8 charges was served on the appellant and she was called upon to offer her explanations within 7 days. On 6.5.1976, the appellant submitted her reply. The Special Officer of the first respondent bank appointed an advocate as enquiry officer to conduct the domestic enquiry against the appellant. The enquiry officer issued notice to the appellant to appear for the enquiry on three' occasions viz., 2.8.1976,26,11.1976 and 7.12.1976. The appellant did not appear on any of these three occasions. Hence, the enquiry officer conducted the enquiry and examined all the witnesses who were available to depose in support of the charges framed against the appellant and gave his report on 31.1.1977 to the disciplinary authority, the first' respondent herein, holding that all the charges framed against the appellant were proved. Thereafter, the second show-cause notice proposing the punishment of dismissal from service was issued to the appellant on 5.2.1977 by the first respondent calling upon her to submit her reply to the proposed punishment. The appellant submitted her reply to the second show-cause notice on 15.2.1977. The Special Officer of the first respondent bank passed orders on 12.3.1977 terminating the services of the appellant, stating that the explanation offered by her was not convincing. As against the order dated 12.3.1977, the appellant preferred an appeal to the 2nd. respondent. Before the 2nd respondent the appellant as well as the first respondent bank let in oral and documentary evidence. On a consideration of the evidence that was tendered, the second respondent by his order dated 14.7.1981 upheld the order of termination dated 12.3.1977 passed by the first respondent. As against the said order of the 2nd respondent dated 14.7.1981, the appellant filed W.P. No. 960 of 1982:
3. Before the learned single Judge, the following contentions were urged on behalf of the appellant:
(A) Along with the charge memo the appellant was not furnished with the list of documents and list of witnesses relied on in support of the charges and the failure to furnish the list . of documents and the list of witnesses will vitiate the entire proceedings.
(B) The appellant should have been furnished with the copies of the statements of witnesses recorded earlier to enable her to effectively cross examine the witnesses at the time of enquiry and the failure on the part of the first respondent to furnish the copies of the statement of the witnesses would also vitiate the entire disciplinary proceedings.
(C) The wording of the charges itself would indicate that there is preconceived conclusion arrived at even at the time of framing of the charges and therefore; the domestic enquiry conducted against the appellant was not fair and proper.
(D) The enquiry officer after completing the enquiry submitted a report of his enquiry proceedings to the disciplinary authority and the disciplinary authority failed to furnish a copy of the report of the enquiry officer to the appellant and the failure on the part of the disciplinary authority to supply a copy of the report of the enquiry officer would vitiate the enquiry since it is in violation of the principles of natural justice.
(E) During the period from 26.3.1976 to 12.3.1977 the appellant was not paid the subsistence allowance and the failure to pay the subsistence allowance to the appellant has prejudicated the defence of the appellant.
(F) The proceedings initiated against the appellant are mala fide and initiated at the instance of the Special Officer of the bank who had a personal animosity against the appellant.
(G) The punishment imposed against the appellant is disproportionate to the gravity of the alleged misconduct.
4. The learned single Judge did not accept any one of the contentions put forth on behalf of the appellant and consequently dismissed, the writ petition. This writ appeal is directed against the order of the learned single Judge.
5. Before us, Mr. P.K. Rajagopal, the learned Counsel for the appellant confined his submissions only to the following two points:
(1) Admittedly the report of the enquiry officer holding that the charges framed against the appellant have been proved was not supplied to the appellant in spite of specific demand made by her for a copy of the enquiry report and the failure on the part of the disciplinary authority to furnish the copy of the report to the enquiry officer along with the second show-cause notice proposing punishment to be imposed on the appellant, will vitiate the entire proceedings and will render the orders challenged in the writ petition invalid.
(2) The appellant was not paid any subsistence allowance during the period from 26.2.1976 to 12.3.1977 and such non-payment of the subsistence allowance to the appellant for the period mentioned above will render the disciplinary proceedings invalid.
6. As far as the first contention of the learned Counsel appearing for the appellant is concerned, the Special Officer of the first respondent bank has appointed an enquiry officer for the purpose of conducting the domestic enquiry into the charges framed against the appellant and the enquiry officer after completing the domestic enquiry submitted his report to the disciplinary authority stating that the charges framed against the appellant have been proved. Thereafter the 1st respondent sent a second show-cause notice dated 5.2.1977 to the appellant asking her to show-cause why she should not be removed from service of the bank. Admittedly the report of the enquiry officer sent to the disciplinary authority holding that the charges framed against the appellant have been proved was not supplied to the appellant along with the second show-cause notice dated 5.2.1977. Ex.A-5 is the reply dated 15.2.1977 sent by the appellant to the provisional conclusion about the punishment to be imposed. The appellant also sent another letter marked as Ex.A-6 in this case to the Special Officer of the first respondent bank requesting him to furnish a copy of the report of the enquiry officer. Ex.A-7 is the letter sent by the Special Officer, to the appellant declining to furnish the copy of the enquiry report on administrative reasons. The Special Officer of the first respondent bank has not stated what are the administrative reasons which disabled the first respondent bank from furnishing the copy of the report of the enquiry officer to the appellant.
7. It is the settled position of law that where the disciplinary authority and the enquiring authority are different authorities and when the enquiry officer sends a report of the enquiry proceedings to the disciplinary authority, the delinquent is entitled to a copy of the report of the enquiry officer and the failure on the part of the disciplinary authority to send a copy of the report of the enquiry officer to the delinquent along with the second show-cause notice proposing the punishment would amount to violation of the principles of natural justice and will render the final order illegal. In Union of India v. Mohd. Ramzan Khan : (1991)ILLJ29SC , the Supreme Court had occasion to deal with the question whether with the alteration of the provisions of Article 311(2) under the Forty Second Amendment of the Constitution doing away with the opportunity of showing cause against the proposed punishment, the delinquent has lost his right to be entitled to a copy of the report of enquiry in the disciplinary proceedings. The Supreme Court answering the question in negative has held as follows:
Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has noting 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 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with the recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
The Supreme Court further observed as follows:
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.
8. In the present case, admittedly the disciplinary authority has not supplied a copy of the report of the enquiry officer to the appellant inspite of specific demand made by the appellant for the copy of the report of enquiry officer. Therefore, in view of the settled position of law on this aspect, we have to hold that the failure on the part of the first respondent to furnish a copy of the report of the enquiry officer to the appellant along with the second show-cause notice, would amount to violation of the principles of natural justice which would render the final order of the 1st respondent dated 12.3.1977 as confirmed by the order of the second respondent dated 14.7.1981 invalid and therefore they are liable to be quashed. The appellant is entitled to succeed in this appeal on this ground alone. In these circumstances, we are unable to agree with the reason given by the learned single Judge in para 5 of his order in the writ petition, for not accepting the contention advanced on behalf of the appellant that the failure on the part of the first respondent to furnish the appellant with a copy of the report of the enquiry officer would vitiate the entire disciplinary proceedings.
9. As we are accepting the first contention of the learned Counsel for the appellant and that the appellant is entitled to succeed on that ground alone as pointed out earlier it is not necessary to deal with the second contention of the learned Counsel for the appellant that the non-payment of subsistence allowance to the appellant during, the period from 26.2.1976 to 12.3.1977 would vitiate the disciplinary proceedings.
10. In view of the above discussion of ours we are obliged to interfere with the order of the learned single Judge in this writ appeal. Consequently, the writ appeal is allowed, the order of the learned single Judge is set aside and the W.P. No. 960 of 1982 shall stand allowed. No costs.