Vijay Nilkanth Gokhale Vs. K.K. Uppal, Chairman Bombay Port Trust and ors. - Court Judgment

Excerpt:
service - disciplinary proceedings - section 25 (1) of major port trust act, 1963 - recommendation of enquiry officer to take particular action against delinquent - copy of such report not made available to delinquent - non supply of copy of such recommendation vitiates proceedings - enquiry officer part of central vigilance commission - discretion exercised by respondent no.1 not maintainable. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - it is well to recall that the substance of the charge was pre-dating the documents so as to enable a party to prefer a claim for refund of earnest money deposit. - with reference to paragraph 7 of the petition, i say that the order sheet dated 16-9-1980 at the inquiry indicates that the petitioner submitted a list of thirteen additional documents and stated that he had already examined these documents and would like to rely on them for his defence and that they should be made available during the regular hearing. the non-production of the said documents has in fact caused great prejudice to me in putting forth my case effectively apart from the fact that the department has totally failed to prove the charge levelled against me. this action on the part of the enquiry officer in not compelling the prosecuting officer to produce the documents asked for by me is clearly against the principles of natural justice and fair-play. sawant is that non-supply of all the 13 documents demanded by his client during the enquiry constituted a violation of the regulations and this had resulted in a failure of justice. he states that he has already examined these documents and would like to rely on these for his defence and therefore, he desires that these should be made available during the regular hearing. s-3 is distinctly more bluish and the flow of ink also more, suggesting thereby that the initials with date 11-3-79 on ex. the requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the enquiry officer including his views in the master of punishment are disclosed to the delinquent servant'.the ratio of the decision is attracted to the facts of this case. that being the position, a recommendation made by the central vigilance commission is not something which can be ignored by the head of an organisation like the bpt. rama rao, (1964)iillj150sc .it was then argued that even assuming the worst against the petitioner, he did not merit the punishment of dismissal having regard to his unblemished service since 1966. mr. any sympathy or charitable view on such officials will not be conducive to keep the streams of administration pure, which is so vital for the success of our democracy. was a detailed one, that the order of dismissal was a well-reasoned document, and, that the dismissal was consequent to the independent exercise of jurisdiction vested in respondent no.s.m. daud, j.1. this petition under article 226 of the constitution takes exception to an order dismissing the petitioner from the service of the 2nd respondent, hereinafter referred to as the 'bpt'.2. the bpt is a body corporate having perpetual succession and a common seal with all powers subject to the provision of the major port trust act, 1963. at the relevant time the 1st respondent was the chairman of the bpt. petitioner joined the employment of the bpt in the year 1966. in the year 1978, he was promoted to the post of deputy manager (junior) in the scale of rs. 1700-55-1920-60-2100. his total emoluments at the relevant time came to rs. 2500/-. an auction was held by the bpt on 19th february, 1979 in respect of goods comprised in what was labelled as lot no. b/1929. in the said auction one subhash chander bid for the lot subhash chander bid for the lot quoting rs. 3100/- as the price. the bid was provisionally accepted and subhash chander deposited rs. 1050/- as earnest money. the sale was to be confirmed within 15 days from the date of the auction. it was however confirmed on 26th march, 1979. subhash chander, it is alleged, with the assistance of the petitioner managed to interpolate a letter purporting to bear the date 10th march, 1979 reciting a withdrawal of the offer made by him on 19th february, 1979 and seeking a refund of the earnest money. as a matter of fact the withdrawal was made in july 1979. with a view to enable subhash chander to get back the money, the petitioner put on the withdrawal letter, the date 11th march, 1979 seeking to convey the interpretation that the letter of withdrawal had been received on 11th march, 1979, thus entitling subhash chander to exercise the option of withdrawal without incurring the liability of forfeiting the amount deposited as earnest money by him. a charge-sheet reciting all this was served upon the petitioner on 30th june, 1980. the accusation levelled against the petitioner was that he had committed misconduct/fraud/dishonesty in connection with bpt affairs and had therefore, rendered himself liable to be proceeded against departmentally. an enquiry was proposed to be held against him and the requisite charge-sheet was accompanied by a statement of imputations. the enquiry was to be carried out by a commissioner for departmental enquiries attached to the central vigilance commission, new delhi. a presenting officer was to represent the bpt at the enquiry. the preliminary hearing was fixed on 16th september, 1980. on that day the petitioner submitted a list of documents which he wanted to inspect and be produced so that use could be made of them in the course of the enquiry. from out of the list given by the petitioner, the enquiry officer, hereinafter referred to as the 'e.q.', permitted the inspection and production of 13 only. the list setting out the documents, their custodians and relevance is at exh. f being page 81 of the petition compilation. at the enquiry only two or three documents were produced, the reasons for the non-production of the rest not being known. this has to be mentioned in as much as the 1st respondent has taken a somewhat conflicting stand in regard to the production or otherwise of the excluded documents. when considering the reply of the petitioner in response to the show-cause notice, the 1st respondent had to say this:-'shri gokhale has also made a grievance that he had asked for 13 documents pertaining to the auctions so as to elucidate certain aspects of procedure. only 2 documents were produced. i do not find that this non-production has any direct bearing on the case. it has not prejudiced the defence of the charge-sheeted employee in any way. it is well to recall that the substance of the charge was pre-dating the documents so as to enable a party to prefer a claim for refund of earnest money deposit. on documentary and other evidence the charge stands proved and it has been correctly so held by the enquiry officer.' however, when it came to the filing of a return to this petition, the gentleman who had passed the order of dismissal, has this to say:-'with reference to paragraph 7 of the petition, i say that the order sheet dated 16-9-1980 at the inquiry indicates that the petitioner submitted a list of thirteen additional documents and stated that he had already examined these documents and would like to rely on them for his defence and that they should be made available during the regular hearing. a copy thereof was made available to the presenting officer, who was directed by the enquiry officer to collect these documents from the respective custodians and produce them during the regular hearing. i deny that only three documents were released by the 2nd respondent or that a zerox copy was produced by the petitioner.'at the enquiry a certain number of witnesses were examined, one of them being mrs. rebello. the enquiry officer then submitted a report which is at exh. l holding that the petitioner has committed misconduct or fraud or dishonesty in connection with port trust work. on the basis of this report, the 1st respondent issued a notice calling upon the petitioner to show cause why the finging of guilt recorded against him by the e.o. should not be affirmed and the penalty of dismissal from service imposed upon him. petitioner showed cause and in relation to the documents not produced, he had to say this:-'i had called upon the department to produce about 13 documents which were in the custody of the department itself. however, except two documents marked exh. d-1, d-3 no documents were produced though ordered. these documents would have been helpful to me in my defence to show the practice that is being followed in the matters of auction, as mentioned above. the non-production of the said documents has in fact caused great prejudice to me in putting forth my case effectively apart from the fact that the department has totally failed to prove the charge levelled against me. this action on the part of the enquiry officer in not compelling the prosecuting officer to produce the documents asked for by me is clearly against the principles of natural justice and fair-play.'the 1st respondent after receipt of the reply from the petitioner on 3rd september, 1982 passed the order dismissing the petitioner from service. this order is at exh. n and is a detailed one. para 3 thereof reads as follows:-'focus is on two documents, viz, exhibits s-2 and s-3. exhibit s-3 purpose to be the original application of 10-3-1979 seeking refund of the earnest money on the ground that the lot had not been confirmed. on that day shri gokhale purported to remark register-assistant. mgr. sales and dated it 11-3-79 which was a sunday. actually the party presented it to the office only on 4-7-1979 and there is inward stamp of that date on the application. it is clear from these facts that shri gokhale purported to hand over the application to the party itself. pre-dating of 11-3-1979 is underscored by two facts-(a) 11th march was a sunday and in pre-dating he just put the date next to the date of the application and (b) if really he had initialled it on 11-3-1979 there was no reason for the party to approach the office only on 4th july, 1979. exhibit s-2 purports to be a copy of that application. here the initials are of 11-3-1979 and the main note of 7-8-1979. however, it is absolutely clear that both the writings were done by the same ink on this copy of the application. conversely the ink of 11-3-1979 on the copy and that of 11-30-1979 on the main application are not same. there is thus no vestige of doubt on the basis of these documents that the application was presented much later but with a view to helping the party, shri gokhale purported to put his signature on 11-3-1979.'in regard to the penalty, the 1st respondent said this:-'i have come to the conclusion that the charge against shri gokhale has been conclusively proved and that having regard to the gravity of his misconduct, the penalty of dismissal from service is required to be imposed on him. in exercise of the powers vested as under section 25(1) of the major port trusts act, 1963, and with the prior approval of the central government as required under that section, i hereby dismiss shri v.n. gokhale from the port trust service'.3. the petitioner after receipt of the order quoted above lodged an appeal with the 3rd respondent represented through its then minister. to this appeal, petitioner received a reply dated 8th march, 1983 which is at exh. q. it recited that an appeal did not lie as the order of dismissal impugned in the appeal has been passed with the approval of the central government. however, and this apart, the appeal memo had been carefully scrutinised and the central government was of the opinion that there were no grounds to interfere with the penalty imposed by the 1st respondent.4. the enquiry against the petitioner was carried out under the bombay port trust employees (classification, control and appeal) regulations, 1976, hereinafter referred to as 'the regulations'. these regulations have been framed under various sections of the major port trust act, 1963. part vi deals with the procedure for imposing penalties. the relevant portion of this part are sub-section 13, 18, 23(ii) all of regulation 12, 13 and the schedule to regulations 2, 10 and 22. these shall be set out, if, and to the extent relevant, at a later stage.5. in the petition exception is taken to the dismissal and the confirmation thereof upon a review by the central government on various grounds. at the hearing mr. sawant has pressed only a few of these grounds and the same will be considered together with the reply given to cash point by the 1st and 2nd respondents.6. the first point taken by mr. sawant is that non-supply of all the 13 documents demanded by his client during the enquiry constituted a violation of the regulations and this had resulted in a failure of justice. in support of this submission reliance is placed by the learned counsel upon sub-regulations (12) and (13) of regulation 12. these read as under:-'12 (12). the inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition :provided that the inquiring authority may, for reason to be recorded in writing refuse to requisition such of the documents, as are in its opinion, not relevant to the case.(13). on receipt of the requisition referred to in sub-regulation (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority'.in considering this contention, it is necessary to collate the factual position relating thereto. exhibit 'f' shows that 13 documents had been sought for by the petitioner and that the equiry officer had given a direction to the presenting officer to get all those documents. this order was made by him after carefully examining the relevancy or otherwise of the required documents. the order passed by the e.o. is at exh. g and contains the following excepts :'the c.o. (chargesheeted officer) has submitted a list of 13 additional documents. he states that he has already examined these documents and would like to rely on these for his defence and therefore, he desires that these should be made available during the regular hearing. a copy of these lists have been made available to the presenting officer who is directed to collect these documents from the respective custodians and produce during the regular hearing'.having regard to the stand taken in the return of respondent no.1, we have to look to some other source to find out where the truth lies-the issue being whether or not the entire or partial set of additional documents was or was not made available to the delinquent in the enquiry. the stand taken by the petitioner in his reply to the show-cause notice and the reply given thereto by the 1st respondent in exh. n have been reproduced above. there from, it would be clear that on 3rd september, 1982, the 1st respondent had to concede that only two out of the required 13 documents had been made available during the course of the enquiry. factually, therefore the return is not correct when it claims, though indirectly, that all the 13 documents had been made available to the petitioner in the course of the enquiry. the true position is that only two or three out of the required 13 documents were made available. counsel for the 1st and 2 respondents, mr. khambata, contends that even if the above be the conclusion, it cannot be said that any prejudice has been caused to the petitioner. this submission of the learned counsel rests upon the reasoning given in para 5 of the 1st respondent's order, which para has been reproduced above. the order does not give a gist of the documents not furnished for use during the enquiry by the petitioner. on the basis of the mere say-so of the 1st respondent, it will not be possible to hold that the non-production of the documents did not have any direct bearing on the case as is the conclusion reached by him while referring to it exh. n. in fact, the 1st respondent seems to be arrogating to himself the functions which fell squarely within the domain of the e.o. the e.o. had considered the relevancy aspect and ruled that the documents demanded by the petitioner be collected and produced at the enquiry. had they not been material or had they not had a direct bearing on the case, the e.o. would have excluded them from consideration. but he did not do so and it was not open to the 1st respondent to substituted his views for those of the e.o. in this matter. to what extent the documents would have been of assistance to the petitioner and whether they did or did not have a direct bearing on the case could have been decided, had the 1st respondent given a gist of the contents of the said documents. in the absence of even this basic assistance, it must be held that there was a denial of opportunity to the petitioner to conduct of the said documents. in the absence of even this basic assistance, it must be held that there was a denial of opportunity to the petitioner to conduct his defence properly. mr. khambata argues that the grievous nature of the charge levelled against the petitioner rested upon the two documents viz. exhibits s-2 and s-3 and that it was not necessary to look into the other documents. the e.o. did not so feel. in fact he acceded to the request of the petitioner for a direction to the presenting officer to get produced the demanded documents. that direction must have been because of his agreement with the petitioner that those documents had a bearing on the case. in any case had the documents come on record or been taken into consideration, the petitioner would have been in position to establish the relevancy or credibility thereof. the reply to the show-cause notice given by the petitioner cannot be totally ignored. i have quoted the relevant portion therefrom and it shows that the petitioner wanted to establish the existence of a practice being followed in the matter of maintaining a record of auctions etc. to the extent these documents had not been made available, the petitioner was prejudiced.7. the second contention raised by mr. sawant is in relation to the questions put to the petitioner in the course of the enquiry. regulation 12(18) permits the enquiring authority after the delinquent closes his case, and where the delinquent has not examined himself, to generally question the delinquent 'on the circumstances appearing against him in the evidence for the purpose of enabling the delinquent to explain any circumstances appearing in the evidence against him'. question no. 6 to which exception is taken by mr. sawant, is worded thus :-'it appears from ex. s-2 and s-3 that the shade and flow of the ink in the initials dated 11-3-1979 and the note dated 7-8-79 on ex. s-2 are similar whereas the shade of the ink in the endorsement dt. 11-3-79 by you on ex. s-3 is distinctly more bluish and the flow of ink also more, suggesting thereby that the initials with date 11-3-79 on ex. s-2 was perhaps put when the note dated 7-8-79 was recorded and not when the endorsement dated 11-3-79 was made on ex. s-3 what have you to say?'.learned counsel submits that the witnesses examined by the parties said nothing of the nature formulated in the question put by the e.o. to the petitioner. the question rested on pure speculation and as it did not flow from the evidence, it could not form the subject of a question permissible under sub-section (18). it is not possible to agree with this contention. when the sub-regulation speaks of circumstances appearing against the delinquent in the evidence, it covers not merely the circumstances coming out in the shape of testimony given through the medium of witnesses examined at the enquiry. it will also include circumstances appearing from the colour, tenor, size and shape of a document or documents coming before the e.o. in the course of the enquiry. here, on the basis of a difference in the appearance of certain papers produced at the enquiry, an impression was created in the mind of the e.o. he was going to take that impression into consideration to appraise the guilt or innocence of the delinquent. for that reason he thought it necessary to question and thus enable the petitioner to give an explanation. i see no error in the question put to the delinquent and further wish to make it clear that hide-bound rules which govern criminal trials are not applicable in all their rigour, to the conduct of departmental enquiries.8. the third contention advanced by mr. sawant is that the e.o. had made a recommendation in regard to the penalty imposable upon the petitioner. a copy of this recommendation was not supplied to his client. the making of the recommendation itself was in violation of the regulations. alternatively, it swayed the judgment of the 1st respondent in the matter of the quantum of punishment merited by the petitioner. therefore, at the least, the petitioner was entitled to a copy of the recommendations, so that he could show-cause against the punishment proposed to be imposed upon him. sub-regulation (23) of regulation 12 is relied upon and the 2nd part thereof which is attracted to the facts of this case, reads thus :-'(ii) the inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include :-(a) the report prepared by it under clause (i) ;(b) the written statement of defence, if any, submitted by the employee;(c) the oral and documentary evidence produced in the course of the inquiry;(d) the written briefs, if any, filed by the said presenting officer or the employee or both during the course of the enquiry; and(e) the orders, if any, made by disciplinary authority and the inquiring authority in regard to the inquiry'.that a recommendation in relation to the punishment was made, is not disputed. respondent no.1 says that the advice received from the central vigilance commission was of a confidential nature and being a privileged document, a copy thereof was not required to be given to the delinquent. mr. sawant relies upon the decision in state of gujarat v. g. teredesai and another, : [1970]1scr251 . in that case also, the enquiry officer was not under an obligation to make any recommendation in the matter of punishment. he however did make a recommendation and a copy thereof was not supplied to the deliquent. the delinquent had taken objection to the non-furnishing of the copy of the recommendations in the matter of punishment as vitiating the disciplinary action taken against him. sustaining this the court speaking through grover, j., said-'now it is correct that the enquiry officer is under no obligation or duty to make any recommendations in the matter of punishment to be imposed on the servant against whom the departmental enquiry is held, and his function merely is to conduct the enquiry in accordance with law and to submit the record along with his findings or conclusions on the various charges which have been preferred against the delinquent servant. but if the enquiry officer proceeds to recommend that a particular penalty or punishment should be imposed in the light of his findings or conclusions the question is whether the officer concerned should be informed about his recommendations. in other words since such recommendations form part of the record and constitute appropriate material for consideration of the government it would be essential that material should not be withheld from him so that he could, while showing cause against the proposed punishment, make a proper representation. the entire object of supplying a copy of the report of the enquiry officer is to enable the delinquent officer to satisfy the punishing authority that he is innocent of the charges framed against him and that even if the charges are held to have been proved the punishment proposed to be inflicted is unduly severe. if the enquiry officer has also made recommendations in the matter of punishment that is likely to affect the mind of the punishing authority even with regard to penalty or punishment to be imposed on such officer. the requirement of a reasonable opportunity, therefore, would not be satisfied unless the entire report of the enquiry officer including his views in the master of punishment are disclosed to the delinquent servant'.the ratio of the decision is attracted to the facts of this case. the e.o., regard being had to the regulations, was not under an obligation to make a recommendation about the punishment. but he did so. a copy of the said recommendation was not furnished to the petitioner. to say that the same was of a confidential nature and therefore, was a privileged document is flouting the law requiring a delinquent servant to be given a proper opportunity to show-cause against the action proposed to be taken against him. considerations of confidentiality have no application to cases of this nature for, the recommendation made by the e.o. is not one which is bereft of any value so far as the disciplinary authority is concerned. mr. khambata argues that the 1st respondent is a high dignitary in charge of the bpt and he has exercised his independent discretion in the matter of punishment. therefore, irrespective of what the recommendation made by the e.o. was, no prejudice can be said to have been caused to the petitioner because of that recommendation inasmuch as the 1st respondent had exercised his own discretion in the matter. the matter is not as simple as sought to be made out by the learned counsel. the e.o. was an integral part of the central vigilance commission. that commission is virtually the watch-dog of the government and semi-government departments and corporations to see that corruption is eradicated and the erring public servants removed from service. that being the position, a recommendation made by the central vigilance commission is not something which can be ignored by the head of an organisation like the bpt. at the least, the said recommendation would have a persuasive value. of course, the 1st respondent in the order does not say that he was swayed by the recommendation made by the e.o. the real question is as to how any one placed in the position of the petitioner would view the situation. of course, the feeling entertained by the delinquent has to be reasonable. it would not be unreasonable of the delinquent, to accept the disciplinary authority to decide the quest of punishment uninfluenced and without labouring under a sense of oppression consequent to the recommendation made by the viligance organisation of the central government. having regard to the authority in teredesai's case (supra), i would hold that the omission to give petitioner a copy of the recommendations vis-a-vis the punishment imposable upon him, has vitiated the order of dismissal.9. mr. sawant submitted that there was no legal evidence to sustain the finding of guilt levelled against the petitioner. in this connection, he refers to the evidence of witness examined in the course of the enquiry. i really do not think it necessary to go into the evidence of this lady for the conclusion in regard to the guilt of the petitioner depended upon the appreciation of the circumstances considered in the background of amongst others the two documents exhibits s-2 and s-3. this factor has been referred to by the 1st respondent is his order and relying thereupon, i would not say that there was no legal evidence to sustain the finding recorded against the petitioner. that a different view could be taken of the matter is of course there. but it is not for a writ court or for that matter a civil court to rule upon the adequacy or reliability of the evidence adduced in a departmental enquiry state of andhra pradesh v. shri s. rama rao, : (1964)iillj150sc . it was then argued that even assuming the worst against the petitioner, he did not merit the punishment of dismissal having regard to his unblemished service since 1966. mr. khambata disputes this view, and rightly so, by relying upon union of india v. parma nanda, : (1989)iillj57sc . paragraph 31 from the said judgment is in these words :-'in the light of the principle to which we have called attention and in view of the aforesaid discussion, the order of the tribunal imposing a lesser penalty on the respondent cannot, therefore, be sustained. he was found guilty of the charge framed against him. he was a party to the fraudulent act for self aggrandisement. he prepared bogus name of ashok kumar who was not working in his division. he has thus proved himself unbecoming and unworthy to hold any post. any sympathy or charitable view on such officials will not be conducive to keep the streams of administration pure, which is so vital for the success of our democracy.'in the instant case, the misconduct ascribed to the petitioner and held proved, was not less serious. to put it bluntly, he was accused of tampering with documents in enable a person who had forfeited the right to get back the earnest money, to recover the same. in other words, he was abetting a fraud and therefore, acting dishonestly. the unblemished service of the last could not have been any excuse for imposing on the petitioner a lesser punishment. in any case, the punishment a delinquent merits is for the authorities to decide, and where the exercise cannot be said to be perverse, the courts cannot and will not interfere.10. mr. sawant contends that the order of dismissal having been passed by the 1st respondent with the previous approval of the central government was in violation of the law and deprived his client of a valuable right to prefer an appeal decided by an independent authority. this contention has, if any, a technical merit and no more. the appeal submitted by the petitioner was not rejected outright. the central government did consider it and saw no reason to interfere. a mere infraction of a rule which may be construed as being directory in nature without resulting in any miscarriage of justice, would not vitiate the impugned order.11. counsel for respondents nos. 1 and 2 contends that the e.o. was an independent functionary who had nothing to do with his clients, that the fullest opportunity was given to the petitioner to meet the case initiated against him, that extensive evidence was led by both the parties, that the report submitted by the e.o. was a detailed one, that the order of dismissal was a well-reasoned document, and, that the dismissal was consequent to the independent exercise of jurisdiction vested in respondent no.1 are all reasons for not interfering with the impugned order. there would have been some substance in these contentions, but for the fact the non-supply of documents to the petitioner and also the recommendation relating to the punishment constituted a serious flaw in the validity of the order of dismissal., had the documents been offered, it is quite possible that the petitioner may have been in a position to establish the existence of a practice which go to the root of the matter and vitiate the order of dismissal. i however make it clear that irrespective of the result of this petition the respondents nos. 1 and 2 will be at liberty to reconsider the matter in the light of what has been stated above and take such actions as they may think appropriate.12. the result of the foregoing discussion is that the petitioner succeeds. exh. n, together with its confirmation by the 3rd respondent, is hereby quashed. rule in these terms made absolute with parties being left to bear their own costs. operation of this judgment is stayed for a period of 8 weeks as from today.