M. R. CALLA, J. ( 1 ) THIS Special Civil Application is directed against the order dated 11. 7. 1986 passed by the Chief Engineer, Gujarat Electricity Board, Wanakbori removing the petitioner from the service of the Gujarat Electricity Board as Assistant Chemist cum plant Operator, Grade II. ( 2 ) THE petitioners case is that he was permanent employee of Gujarat Electricity board. While he was working as Assistant Chemist cum Plant Operator, Grade II on 15. 5. 1986 he was placed under suspension vide order dated 15. 5. 1986 on the allegations of criminal action of unlocking the locked quarter No. E. 36/1 of the Board at Wanakbori thermal Power Station Colony on 14. 5. 1986 and forcibly occupying the same unauthorisedly and for organising the strike in Wanakbori Thermal Power Station (which is a public utility and essential service) of a section of GEB employees on 3. 5. 1986 and to instigate and to coerce the laboratory and D. M. Plant staff on duty to come out and join the strike on 3. 5. 1986. Besides this on the very same date i. e. 15. 5. 1986 a chargesheet had also been issued alleging against him that he had instigated the employees to go on illegal strike on various dates in the year 1985 between 16. 4. 1985 to 1. 1. 1986 and had also engaged his companions in the activities of causing damages for which criminal complaint had been filed against him at Thasra police station. Certain instances of his misbehaviour and misconduct were mentioned in the chargesheet. The charges were considered to be misdeeds of serious nature. By this chargesheet dated 15. 5. 1986 the petitioner was called upon to file reply within seven days and further that if he wants to rely on any witnesses he may give name, status and address of the witnesses so that it could be considered as to whether the permission to produce the witnesses at his cost may be granted or not. The petitioner filed reply dated 6. 6. 1986 denying the charges and allegations levelled against him in the chargesheet and also denying the charge of unlocking the locked quarter of the Board as was set out in the suspension order dated 15. 5. 1986. ( 3 ) THE petitioner was then called for inquiry on 11. 6. 1986 through the letter dated 4. 6. 6. 1986 denying the charges and allegations levelled against him in the chargesheet and also denying the charge of unlocking the locked quarter of the Board as was set out in the suspension order dated 15. 5. 1986. ( 3 ) THE petitioner was then called for inquiry on 11. 6. 1986 through the letter dated 4. 6. 1986 and thereafter a show cause notice dated 25. 6. 1986 was issued calling upon him to show cause why his services may not be terminated. Alongwith this show cause notice dated 25. 6. 1986, a copy of inquiry report dated 16. 6. 1986 and copies of certain documents were also sent. The petitioner filed reply dated 30. 6. 1986 to the show cause notice and thereafter by an order dated 11. 7. 1986 the petitioner was terminated from the service of the Gujarat Electricity Board and this order was served upon the petitioner on 15. 7. 1986. This order dated 11. 7. 1986 has been challenged through this Special Civil application on the ground that the same had been passed in breach of the priciples of natural justice, no inquiry worth the name was conducted against the petitioner, no opportunity was given to him, the petitioner has been victimized because the respondent was antagonized from him, simply because the petitioner had been representing and espousing the cause of the employees as part of his legitimate duty being the General secretary of Bijali Mazdoor Panchayat which is a registered trade union. It has been submitted that when the petitioner was called in the office of the Chief engineer, respondent No. 2 on 11. 6. 1986 some questions were put to him. No witnesses on behalf of the management were examined in his presence nor copies of any documents were given to him on that day and the petitioner was thrown out of the employment. It has also been submitted in para 7 of the petition that the show cause notice, chargesheet etc. had been given by I/c Chief Engineer who himself conducted the inquiry secretly and terminated the services of the petitioner by taking impugned action in colourable exercise of the managerial power and that it is the case of the petitioner that the prosecutor has become a judge and witness. had been given by I/c Chief Engineer who himself conducted the inquiry secretly and terminated the services of the petitioner by taking impugned action in colourable exercise of the managerial power and that it is the case of the petitioner that the prosecutor has become a judge and witness. It has further been stated that the petitioner never occupied any quarter forcibly or illegally and that he was allotted the quarter by the Chairman of the Quarter Allotment Committee vide Annexture "h" dated 15. 5. 1986 annexed with the petition and that he had not resorted to any strike nor he had instigated any employee to resort to the strike. That no strike was declared to be illegal and that the impugned order was against the provisions of the service regulations framed by the respondent Board and pointed reference has been made to clause 6 and clause 7 which is exception to clause 6. A reference has also been made to clause 8 relating to summary proceedings. On these averments and grounds the relief is sought against the impugned order of removal from service and declaration that clause 7 (vii) of the Regulation of the Gujarat Electricity board is unreasonable, irrational and violative of Article 21 of the Constitution of India. ( 4 ) ON behalf of the Gujarat Electricity Board an affidavit-in- reply dated 11. 8. 1986 has been filed seeking to traverse the petitioners claim stating therein that under the essential Service Maintenance Act, 1981 notification dated 15. 3. 1986 had been issued by the Government of Gujarat whereby the strike had been prohibited in an establishment or undertaking engaged in generating, supplying or transmitting electricity. That the petitioner had issued public notice on 2. 5. 1986 asking the members of the union to start agitation from 3. 5. 1986, the petitioner had been informed by the Chief Engineer vide his reply dated 2. 5. 1986 to the said public notice dated 2. 5. 1986 that the union was not recognised union and if the agitation was to be in the form of strike it would be illegal and that if he proceeds with any illegal agitation strict action will be taken as per rules and if the persons joining the agitation will not work they will not be paid any salary on the principle of no work no salary. The Chief Chemist submitted his report dated 3. The Chief Chemist submitted his report dated 3. 5. 1986 stating therein that the petitioner had come to the plant and had removed some persons who were on duty. That it was the 5th incident leading to indiscipline in the section. Thereafter, in the evening of the same day the petitioner had issued another notice informing the members about the withdrawal of the agitation and directing them to resume their regular duty. That the petitioner was informed vide letter dated 4. 6. 1986 that there will be summary proceedings and for that he should remain present on 11. 6. 1986. Accordingly the petitioner remained present on that day and gave answers to the questions which were put to him in writing. It has been further stated in the affidavit-in-reply filed on behalf of the Board that under the boards Employees Conduct Discipline and Appeal procedure clause 6 deals with the procedure for acts of misconduct while clause 7 is in the nature of exception to clause 6 which provides that in certain cases the procedure prescribed in clause 6 need not be followed and whereas the act of the petitioner was found to be one as enumerated in clause 7, the summary proceedings were held against him by the competent Authority as per clause 8. It has been further stated that the petitioners misconduct falls under sub-sections 10,13 and 15 of Schedule "a" to the aforesaid clauses and the Board was entitled to follow the procedure prescribed under Clause 7. It has been then stated that these Rules also provide for an appeal by the delinquent and that the petitioner could have preferred an appeal before the Competent Authority. It has been further stated that the said report of the Chief Chemist, the documents, viz. Public notices issued by the petitioner himself were considered to be sufficient for taking action against him and accordingly show cause notice dated 25. 6. 1986 was issued to which the petitioner had filed reply dated 30. 6. 1986 and the case of the Board is that the procedure required to be followed has been duly followed. Public notices issued by the petitioner himself were considered to be sufficient for taking action against him and accordingly show cause notice dated 25. 6. 1986 was issued to which the petitioner had filed reply dated 30. 6. 1986 and the case of the Board is that the procedure required to be followed has been duly followed. The petitioners grievances against the denial of reasonable opportunity and breach of the principles of natural justice have been refuted and it has been stated that the action was taken on the basis of the record available with the Board and there was no need to examine the witnesses and further that the petitioner did not ask for cross-examination of any witness or to examine his own witnesses in defence. The allegations such as the respondent being antagonised and that of his victimization for being the General Secretary of the Union have also been denied. It has been stated that the case was decided on the basis of the available material. The Chief Chemist submitted his report on 2. 7. 1986 taking the decision to terminate the services of the petitioner and the matter was placed before the next higher authority i. e. Member of the Board who after perusing the record approved the decision of the respondent No. 2 and thereafter the services of the petitioner were terminated. It has been further stated that the quarter had not been allotted to the petitioner on 14. 5. 1986 FIR No. 84/86 for his criminal trespass lodged at Thasra Police station was pending and a copy of the allotment order dated 15. 5. 1986 as has been produced by the petitioner had, in far t, never been issued. On these premises the petition is sought to be rejected. ( 5 ) MR. Girish Patel appearing on behalf of the petitioner has submitted that the petitioner had also preferred an appeal against the impugned order dated 11. 7. 1986 with reference to the interim order passed by this Court on 13. 10. 1986 but the same was dismissed by the Appellate Authority i. e. Member (Technical) on ll/14th-l1-1986. He was further stated that an amendment was also proposed on 30. 12. 7. 1986 with reference to the interim order passed by this Court on 13. 10. 1986 but the same was dismissed by the Appellate Authority i. e. Member (Technical) on ll/14th-l1-1986. He was further stated that an amendment was also proposed on 30. 12. 1986 with regard to this order passed by the Appellate Authority but the same could not be presented in the Court and it has remained lying in the Advocates brief and therefore the matter may be taken up at 2. 45 p. m. in the II sitting. In the II sitting when the matter was taken up Mr. Amit panchal appeared on behalf of Mr. M. D. Pandya for Gujarat Electricity Board and Mr. Patel has today placed the amendment on record seeking to challenge the appellate order. Mr. Amit Panchal has submitted that he has no objection if, amendment is granted. Accordingly the amendment has been granted and Mr. Patel is to carry out the amendment right today. Accordingly, the impunged order dated 11. 7. 1986 is under challenge alongwith the order dated 11/14-11-1986 passed by the Apellate Authority i. e. Member (Technical) of Gujarat Electricity Board. In this case, affidavit-in-rejoinder dated 25. 8. 1986 had also been filed and through this rejoinder the petitioner has reiterated his case which was set out in the petition. 15. 7. 1996 ( 6 ) IT may also be mentioned that during the pendency of this petition earlier an application seeking amendment for declaration of Clause 7 (vii) of the regulation to be invalid and setting aside of the removal order based on the summary procedure in clause 7 (vii) had been filed on 28. 11. 1995 to which a reply dated 13. 12. 1995 had been filed and on 31. 1. 1996 and order was passed in Civil Application No. 2916 of 1995 seeking amendment that this Civil Application be heard alongwith the main matter and this amendment was allowed on 27. 2. 1996 and the same was also carried out. The proceedings held against the petitioner and the impugned orders dated 11. 7. 1986. 11/14. 11. 1986 passed by the Appellate Authority have been challenged including the challenge to the validity of clause 7 i. e. exception to clause 6 and the summary procedure resorted against the petitioner. 2. 1996 and the same was also carried out. The proceedings held against the petitioner and the impugned orders dated 11. 7. 1986. 11/14. 11. 1986 passed by the Appellate Authority have been challenged including the challenge to the validity of clause 7 i. e. exception to clause 6 and the summary procedure resorted against the petitioner. I do not consider it necessary to go into the question of validity of clause 7 because while seeking to challenge the validity of this clause 7 the petitioner himself was not aware with the correct provision contained in this clause and after going through the relevant clause under Chapter VIII (Disciplinary Action) as contained in the Establishment Manual of Gujarat Electricity Board I find that the reproduction of clause 7 through the amendment in this petition is not correct and faithful reproduction of the clause as it stands in the Manual and after the decision rendered by the Supreme Court in Tulsiram Patels case (AIR 1985 SC pg. 1416) and in the case of d. P. O. vs. T. R. Challapon [air 1975 SC Pg. 2216]. I do not find that there is any scope for challenge to this clause. Before I proceed to examine the contentions raised on behalf of the petitioner the scheme of the relevant provisions as contained in Chapter VIII, Disciplinary Action in the establishment Manual of Gujarat Electricity Board as statutory requirement framed under section 79 (c) of the Electricity Supplies Act may be considered. Clause 6 provides the procedure for dealing with the acts of misconduct by way of regular inquiry. Clause 7 provides for exception to clause 6 i. e. the cases in which the regular inquiry can be dispensed with and clause 8 which provides for the decision to be taken by resorting to the summary proceedings. Clauses 7 and 8 as contained in Establishment Manual made available by Mr. Amit Panchal and Mr. M. D. Pandya on behalf of the Gujarat Electricity board are reproduced as under :"7 Exception to Clause 6. The procedure prescribed in clause 6 need not be followed and all or any of its provisions may be waived in the following cases : (A) When the person is a temporary employee or daily wage earner or casual worker or is on probation. (B) When the person charged admits the charge or charges. The procedure prescribed in clause 6 need not be followed and all or any of its provisions may be waived in the following cases : (A) When the person is a temporary employee or daily wage earner or casual worker or is on probation. (B) When the person charged admits the charge or charges. (C) When the order of punishment such as dismissal, removal or reduction is based on facts which have led to the conviction of the person in a criminal court. (D) When the order is based on the report received either from the Government or from the police or any other authoritative source or on the directives received from the said or such other authority with regard to the person having been connected with any body or association known or declared to be engaged in subversive activities : (E) When the person charged has absconded or when it is for other reasons impracticable or difficult to communicate with the person concerned. (F) When the Board decides to terminate the services of an employee in terms of regulation 64 of the Bombay State Electricity Board Employees Service regulations. (G) When Summary proceedings are held by the competent authority as provided in clause 8 in cases (I) Where the employee is caught red-handed having committed or while committing an act of misconduct. (II) Where there is obvious evidence to the misconduct. OR (III) Where the misconduct or misbehaviour is considered to grave and convincing to warrant or justify the normal procedure to be followed provided that:1. No person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Provided further that the above provision shall not apply (A) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. (B) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause. 2. (B) Where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause. 2. If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under Clause (1) (b), the decision thereon of the authority empowered to dismiss or remove such a person or to reduce him in rank as the case may be shall be final. 8. The competent authority in Schedule C may in cases covered by Clause 7 (g) hold summary proceedings (vide model charge sheet form given in schedule E (ii) on the spot and take a decision on the evidence available. The charges and the decision taken shall be recorded and copies thereof handed over to the accused employee. The summary decision may be made effective forthwith but punishments involving termination of service, discharge, removal or dismissal shall be subject to the confirmation by the next higher authority or the Board as the case may be. The summary decision is appealable and may be stayed by the appellate authority pending disposal of appeal. " ( 7 ) THUS according to Clause 7 which is exception to Clause 6, procedure of regular inquiry prescribed in Clause 6 need not be followed or any of its provisions may be waived in cases enumerated thereunder. Sub-clause (g) of Clause 7 provides that when summary proceedings are held by the competent authority as provided in clause 8 in cases where the employee is caught red- handed having committed or while committing an act of misconduct, where there is obvious evidence to the misconduct or where the misconduct or misbehaviour is considered to be grave and convincing to warrant or justify the normal procedure to be followed, in terms of proviso thereunder no person shall be dismissed or reduced in rank until he has been given reasonable opportunity of showing cause against the action proposed to be taken with regard to him. Thus, the scheme under clause 7 is that once the regular procedure of inquiry as provided in Clause 6 is not to be followed and a decision is taken to hold the summary proceedings in accordance with clause 8, in such summary proceedings if the delinquent employee is sought to be dismissed or removed or reduced in rank in accordance with the procedure contemplated under clause 8, he cannot be subjected to dismissal, removal or reduction in rank without giving a reasonable opportunity of showing cause against the action proposed to be taken. In the facts of the case the sequence of actions taken against the petitioner are as under :a. Suspension order dated 15. 5. 1986 for--[i] Criminal action of unlocking the locked quarter No. E-36/1 of the Board at wanakbori Thermal Power Station colony on 14. 5. 1986 and forcibly occupying the same unauthorisedly. [ii] Organising the strike in Wanakbori Thermal Power Station (which is a public utility and essential services) of a section of GEB Employees on 3. 5. 1986 and to instigate and to coerce the laboratory and D. M. Plant staff on duty to come out and join the strike on 3. 5. 1986. B. Chargesheet for incident of 1985 - on 15. 5. 1986 the chargesheet is issued against the petitioner with regard to certain incidents of various dates in the year 1985. C. Notice for summary proceedings for allegations with regard to incident dated 3. 5. 1986. (I) On 4. 6. 1986 a notice was sent to him that summary proceedings were decided to be held against him and he may present himself in the chamber of i/c. Chief Engineer on 11. 6. 1986 at 3. 30 p. m. (II) On 6. 6. 1986 the petitioner sent a letter to the Chief Engineer of GEB contesting the two allegations levelled against him in the suspension order taking the stand that the quarter in question had been allotted to him by allotment committee vide letter dated 15. 5. 6. 1986 at 3. 30 p. m. (II) On 6. 6. 1986 the petitioner sent a letter to the Chief Engineer of GEB contesting the two allegations levelled against him in the suspension order taking the stand that the quarter in question had been allotted to him by allotment committee vide letter dated 15. 5. 1986 and denying the allegations of organising illegal strike or intigating the employees and coercing the employees of laboratory and D. M. plant and further stating that the matters with regard to the incident of various dates in 1985 had already been resolved amicably in past and that the management itself had given out in writing earlier after prolonged discussions with the Vice President of the union that the management was not taking any action against any employee for the same. The petitioner thererfore requested that he had not committed any misconduct warranting issue of chargesheet and that the same may be withdrawn. (III) On 11. 6. 1986 when the petitioner appeared for summary proceedings before the I/c. Chief Engineer he was given chargesheet in summary proceedings containing the allegation in relation to the strike on 3. 5. 1986 with two questions thereon as to whether he admits the charges and whether he had any clarification to offer. On this very chargesheet in the departmental proceedings his denial to the charge is recorded alongwith the explanation that on 3. 5. 1986 he had not gone on strike and not met the workers to go on the strike. That he had not instigated any worker on duty and had not instigated any one to leave the plant. (IV) Thereafter on 25. 6. 1986 a show cause notice was issued against the petitioner under the signature of the I/c. Chief Engineer stating therein that on the basis of the summary proceedings held against him on 11. 6. 1986 it was found that on 2. 5. 1986 the petitioner had issued notice calling upon the employees to go on agitation on 3. 5. 1986, and thereby instigated the employees to go on illegal strike on 3. 5. 1986 as per the notice issued by the petitioner on 2. 5. 1986 and that on 3. 5. 1986, 116 employees had gone on strike. On the very same date i. e. on 3. 5. 5. 1986, and thereby instigated the employees to go on illegal strike on 3. 5. 1986 as per the notice issued by the petitioner on 2. 5. 1986 and that on 3. 5. 1986, 116 employees had gone on strike. On the very same date i. e. on 3. 5. 1986 the petitioner had gone to the laboratory and the D. M. Plant and had instigated the working employees to leave work and in the evening of 3. 5. 1986 another notice was issued by the petitioner calling upon the employees to go on job and in view of this proved misconduct an action of removal from service was proposed against him and he was called upon to show cause against the same on or before 30. 6. 1986. (V) Along with this show cause notice dated 25. 6. 1986 copy of the report of the competent Authority dated 16. 6. 1986 the list of seven documents in support of the charges and the copies of these seven documents as per the list were made available to him. ( 8 ) ON 30. 6. 1986 the petitioner filed his reply to the show cause notice dated 25. 6. 1986 stating therein that the notice of proposed penalty was preconceived. He had not committed any misconduct, notice was arbitrary, malafide, he does not know when the inquiry was conducted and how the management concluded that the petitioner was guilty of alleged misconduct, that he had never instigated any worker to resort to strike, that the management intends to victimize the petitioner with ulterior reasons because he was General secretary of the Bijali Mazdoor Panchayat. That the allegation of unlocking quarter was false and far from turth. The quarter had been allotted to him, that the impugned notice was arbitrary, malafide and had been issued to victimize him and the same may therefore be withdrawn. On 11. 7. 1986 the impugned order removing the petitioner from service was passed. ( 9 ) ON 17. 7. 1986 the petitioner preferred the present Special Civil Application before this Court challenging the order of his removal from service on the basis of the summary proceedings. ( 10 ) ON 29. 7. 1986 notice returnable on 11. 8. 1986 was issued and on 23. 6. 1987 after hearing the respondent Rule was issued and made returnable on 14. 9. 1987. On 11. 8. ( 10 ) ON 29. 7. 1986 notice returnable on 11. 8. 1986 was issued and on 23. 6. 1987 after hearing the respondent Rule was issued and made returnable on 14. 9. 1987. On 11. 8. 1986 an affidavit-in-reply was filed on behalf of the respondents under the signature of the i/c. Chief Engineer seeking to traverse the petitioners case and further stating therein that after the petitioners reply dated 30. 6. 1986 to the show cause notice dated 25. 6. 1986 the chief Engineer had submitted the matter on 2. 7. 1986 to the next higher authority i. e. Member of Respondent Board and the next higher authority had also approved the decision with regard to removal of the petitioner and only thereafter order dated 11. 7. 1986 had been issued. It was recorded in the proceedings before this court on 13. 10. 1986 that the petitioner shall file an appeal as provided under Regulation 10 read with Schedule d of the Employees Conduct (Discipline and Appeal) Procedure against the order of dismissal and the authorities were directed to dispose of the Appeal within two weeks thereafter. The petitioner was allowed to occupy the quarter with the supply of water and electricity. ( 11 ) ACCORDINGLY with reference to this Courts order dated 13. 10. 1986 the petitioner had preferred an Appeal before the Appellate Authority against the order dated 11. 7. 1986 and the Appellate Authority rejected the Appeal vide its order dated 11- 14/11/1986 and this order dated 11-14/11/1986 was placed on record by way of an amendment on 27. 6. 1996 and the appellate order is also thus under challenge in this petition. ( 12 ) FROM the resume of the dates and events as above it is clear that the respondent considered it to be a fit case for not holding regular inquiry under clause 6 and having waived regular procedure under clause 6 they had decided to hold summary proceedings against the petitioner. Mr. Patel has submitted that it was not at all a case for resorting to the summary proceedings because the nature of allegations clearly shows that it required the inquiry in datail and the allegation with regard to the petitioners calling upon the employees to go on strike or instigating them not to go on work or to coerce them to leave the work on 3. 5. 5. 1986 and thus to go on strike could not be established without examining the witnesses in presence of the delinquent employee. According to Mr. Patel it was neither a case in which the petitioner had been caught redhanded nor was it a case where there was obvious evidence to the misconduct and as such there was no justification for holding summary proceedings against the petitioner. On the other hand, it was submitted by Mr. M. D. Pandya and Mr. Amit Panchal that it was a clear cut case in which there was obvious evidence to the misconduct in view of the notice issued by the petitioner calling upon them to go on agitation and it was further submitted on behalf of the respondent that even in case of misconduct and the misbehaviour when the same is considered too grave and convincing to warrant or justify the normal procedure to be followed, it was open for the respondents to take resort to the summary proceedings as provided in clause 8 on the strength of Clause 7 (g) (iii) and the only rider was that in such a case the order of dismissal or removal or reduction in rank cannot be passed without giving any show cause notice against the action proposed to be taken and in the present case before passing the impugned order of removal such a show cause notice as contemplated by proviso under 7 (g) (iii) had been given to the petitioner. It is thus agreed on behalf of the respondents that even in the case of misconduct or misbehaviour warranting normal procedure, summary proceedings can be resorted to subject to the condition of giving show cause notice before passing an order of dismissal, removal or reduction in rank. Having considered the submission of Mr. Paterl on behalf of the petitioner on the one hand and Mr. M. D. Pandya and Mr. Amit Panchal on behalf of the respondent Board on the other hand I find that the decision taken by the respondent to resort to the summary proceedings against the petitioner is not in breach of any relevant clause providing for disciplinary action. Paterl on behalf of the petitioner on the one hand and Mr. M. D. Pandya and Mr. Amit Panchal on behalf of the respondent Board on the other hand I find that the decision taken by the respondent to resort to the summary proceedings against the petitioner is not in breach of any relevant clause providing for disciplinary action. Even if it is assumed that the petitioner was not caught redhanded having committed or while committing an act of misconduct or that there was no obvious evidence of misconduct it is clearly established that according to regulation 7 (g) (iii) even in case of grave misconduct or misbehaviour convincing to warrant or justify the normal procedure, it was permissible under the regulation to hold summary proceeding in accordance with clause 8. The word used in clause 7 (g) (iii) "convincing to warrant or justify normal procedure to be followed" make it amply clear that in case where misconduct or misbehaviour is considered to be so grave and convincing so as to warrant or justify normal procedure, summary proceedings can be resorted to with embargo that in such a case if the Disciplinary Authority decides to hold summary proceedings instead of regular procedure, it may not pass the order with regard to dismissal, removal or reduction in rank without giving show cause notice. In other words, in such cases while taking resort to the summary proceedings the punishment other than the dismissal, removal or reduction in rank could be imposed by following the summary procedure instead of regular procedure but if the penalty of dismissal or removal or reduction in rank is to be imposed the authorities will be under an obligation to issue show cause notice before passing the order of punishment of dismissal or removal or reduction in rank on the basis of summary proceedings. Thus, I do not find any force in the contention raised on behalf of Mr. Patel that it was not a case in which summary proceedings could be resorted to and accordingly this contention fails. ( 13 ) IT was next contended by Mr. Patel that even if it is held that the summary proceedings could be held against the petitioner in the facts of this case, the impugned order of removal from service still deserves to be set aside because even the summary procedure as provided in clause 8 has not been followed. ( 13 ) IT was next contended by Mr. Patel that even if it is held that the summary proceedings could be held against the petitioner in the facts of this case, the impugned order of removal from service still deserves to be set aside because even the summary procedure as provided in clause 8 has not been followed. The argument of Mr. Patel is that even in the summary proceedings the decision is to be taken on the basis of the evidence and it has been submitted by Mr. Patel that in this case the decision has not been taken against the petitioner on the basis of any evidence whatsoever and even while holding the summary proceedings the principles of natural justice have been violated in the sense that the procedure under clause 8 has not been strictly followed. The petitioner has been denied the reasonable opportunity. The important documents were withheld from the petitioner on the date of inquiry i. e. 11. 6. 1986 and the copies of such documents even if made available to the petitioner subsequently at the time of giving show cause notice cannot validate the impugned order. The show cause notice itself stands vitiated as it is based on so called report dated 3. 5. 1986 prepared by the Chief Chemist, which by no norms can be treated as evidence and because this report dated 3. 5. 1986 prepared by the chief Chemist and the notice dated 2. 5. 1986 have been made use of against the petitioner in the report dated 16. 6. 1986 without supplying copies thereof on 11. 6. 1986 i. e. date of summary inquiry on the basis of which the show cause notice dated 25. 6. 1986 was issued and the order dated 11. 7. 1986 was passed. It has been submitted by Mr. Patel that the copies of the documents mentioned at item nos. 4 and 5 and the copy of the Chief Chemists report dated 6. 5. 1986 mentioned at item no. 6 included in the list of documents in support of the charges were not made available to him on 11. 6. 1986 i. e. the date on which he was called to appear before the I/c. Chief engineer Mr. Patel has been categorical and emphatic in submitting that in the chargesheet on which his answers on two questions were taken on 11. 6. 6. 1986 i. e. the date on which he was called to appear before the I/c. Chief engineer Mr. Patel has been categorical and emphatic in submitting that in the chargesheet on which his answers on two questions were taken on 11. 6. 1996 there is no reference to any of these three documents including the Chief Chemists report dated 3. 5. 1986 and thus the show cause notice given to the petitioner was based on the material which was not at all disclosed to him at any stage prior to the stage of the show cause notice and hence the show cause notice stands vitiated and consequently the impugned order of removal from service also stands vitiated. This argument raised on behalf of the petitioner by Mr. Patel has been sought to be met on behalf of the respondents by saying that copies of these documents had been at least made available to the petitioner at the time of giving show cause notice and therefore, anything if the petitioner wanted to say against these documents he could have said in the reply to the show cause notice but the petitioner has not said anything about it in his reply to the show cause notice and has only said that the decision was preconceived and the notice was arbitrary and malafide. It was submitted by Mr. Pandya and Mr. Panchal on behalf of the Board that no prejudice can be said to have been caused to the petitioner and on account of the nonsupply of these documents at the stage when he was called upon to appear and when he appeared before the I/c. Chief Engineer on 11. 6. 1986 he did not suffer any handicap. Although the chargesheet dated 11. 6. 1986 does not indicate that it was accompained even with the list of the documents to be relied upon against him what to talk of the copies of all these documents, Mr. Pandya went to the extent of submitting that reading of the list of the documents in support of the charges supplied with the show cause notice making reference to the seven documents shows that at least the list must have given to him with the chargesheet dated 11. 6. 1986. Therefore, even if the copies of the documents were not given to him on 11. 6. 6. 1986. Therefore, even if the copies of the documents were not given to him on 11. 6. 1986 and the same were made available to him at the time of giving show cause notice it cannot have any effect on the illegality of the order of punishment passed against the petitioner on 11. 7. 1986. ( 14 ) BEFORE dealing with this contention with regard to the breach of the summary procedure as prescribed in clause 8 and its various facets with regard to the breach of the principles of natural justice, denial of reasonable opportunity, withholding documents, the use of the undisclosed documents and the question of prejudice, I may first consider last and ancilliary submission made on behalf of the respondent Board that the copies of the documents may not have been given to the petitioner on 11. 6. 1986 but the petitioner had not raised any such grievance in his reply to the show cause notice and therefore he cannot be allowed to raise this grievance in this petition. ( 15 ) FIRSTLY the chargesheet dated 11. 6. 1986 itself does not disclose that there was any enclosure with it, and even otherwise there is no contemporaneous evidence or material to show that copy of this list was made available to the petitioner on 11. 6. 1986. Merely because the list which was supplied alongwith the show cause notice dated 25. 6. 1986 says that it was the list of the documents in support of the charges it cannot be said by conjecturous implication that this list must have been made available to the petitioner on 11. 6. 1986. The argument of the respondent that the petitioner had not raised any such grievance in the reply dated 30. 6. 1986 to the show cause notice and therefore he should not be allowed to advance the grievance about the nonsupply of these documents, cannot be accepted in view of the fact that it is established on record that on 11. 6. 1986 copies of the documents had not been supplied to the petitioner and it is stated in the show cause notice dated 25. 6. 1986 itself that the copy of the report dated 16. 6. 6. 1986 copies of the documents had not been supplied to the petitioner and it is stated in the show cause notice dated 25. 6. 1986 itself that the copy of the report dated 16. 6. 1986 made by the competent officer i. e. I/c. Chief Engineer as also copies of seven documents in support of the charges is enclosed with this show cause notice and the copies of these documents have been supplied to the petitioner only at the stage of the show cause notice. ( 16 ) IN this view of the matter, the questions which require consideration are as follows:[1] Whether the respondents have taken a decision in the summary proceedings against the petitioner on the basis of any evidence ?[2] Whether nonsupply of the copies of the documents on 11. 6. 1986 when the petitioner was called to appear before the I/c. Chief Engineer amounts to the denial of reasonable opportunity and the breach of the principles of natural justice and thus summary proceedings under clause 8 stand vitiation ?[3] In case it is held that the petitioner has suffered any prejudice on account of nonsupply of the documents on 11. 6. 1986 whether such prejudice can be said to be of no consequence because the copies of these documents were supplied with the show cause notice? ( 17 ) WITH regard to the question as to whether the decision against the petitioner is based on any evidence, it may be straight way pointed out that in the instant case neither any witness was present on 11. 6. 1986 on behalf of the department nor any witness was examined and as such there was no oral evidence whatsoever except for the denial and the explanation given by the petitioner in answer to the two questions which were put to him. Not only this the document dated 11. 6. 1986 i. e. chargesheet in the summary proceedings show that there is no reference in the chargesheet to the notice dated 2. 5. 1986 said to have been issued by the petitioner calling upon the employees to go on for agitation on 3. 5. 1986 nor there is any reference in the chargesheet to the report dated 3. 5. 1986 made by the Chief Chemist, and this document i. e. chargesheet dated 11. 6. 5. 1986 said to have been issued by the petitioner calling upon the employees to go on for agitation on 3. 5. 1986 nor there is any reference in the chargesheet to the report dated 3. 5. 1986 made by the Chief Chemist, and this document i. e. chargesheet dated 11. 6. 1986 simply contains the charge, petitioners denial and his explanation in answer to the question No. 2. The report dated 16. 6. 1986 shows that the documents contained in the list were taken to be the evidence for arriving at a decision against the petitioner and thus all these documents have been made the basis for arriving at a decision against the petitioner. Evidence is the means to proof from which an opinion may logically be formed as to the existence of certain fact and it consists of proof by testimony of witnesses or by writing or record. The word evidence signifies only the instrument by means of which the relevant facts are brought before the court i. e. witnesses and documents by means of which the relevant facts are brought before the court i. e. witnesses documents by means of which the court is convinced of the facts. The evidence means and includes all statements which are permitted or required to be made before the court or the concerned authority in relation to the matter of fact under inquiry where evidence signifies in its original sense state of being evident, plain and apparent so as to generate the proof. Thus the evidence is that which makes a matter in dispute to be clear and evident and the evidence thus stands to proof as means to an end. Here is a case in which I find that the charge was narrated in the chargesheet in the summary proceedings and after recording petitioners denial the charge itself has been read as the proof of the charge against him on the basis of the allegation set out against the petitioner in the suspension order, notice dated 4. 6. 1986 which was given to him for appearance in summary proceedings, the chargesheet dated 11. 6. 1986, notice dated 2. 5. 1986 said to have been issued by the petitioner, notice dated 2. 5. 1986 which was sent to the General secretary of the Bijali Mazdoor Panchayat, Vanakbori by the Chief Engineer, the chief chemists report dated 3. 5. 6. 1986 which was given to him for appearance in summary proceedings, the chargesheet dated 11. 6. 1986, notice dated 2. 5. 1986 said to have been issued by the petitioner, notice dated 2. 5. 1986 which was sent to the General secretary of the Bijali Mazdoor Panchayat, Vanakbori by the Chief Engineer, the chief chemists report dated 3. 5. 1986 and yet another notice dated 3. 5. 1986 said to have been issued by the petitioner. One fails to understand as to how all these documents could be treated as evidence for holding charge to be proved. The order of suspension only shows that on the allegations set out therein the petitioner was placed under suspension and as such this does not evidence any proof of the charge. Document No. 2 is notice dated 4. 6. 1986 for summary proceedings on 11. 6. 1986 and therefore this also is no evidence in support of the charge. Document dated 11. 6. 1986 is the chargesheet itself, it cannot be said to be evidence. Then comes the notice dated 2. 5. 1986 which is said to have been issued by the petitioner as public appeal issued by him in his capacity as General Secretary. This document was never confronted to the petitioner on 11. 6. 1986 when he appeared before the I/c. Chief Engineer nor it was referred in the body of the chargesheet dated 11. 6. 1986, and therefore, the next document i. e. letter dated 2. 6. 1986 which was sent by the Chief Engineer to the General Secretary of the Bijali Mazdoor Panchayat, Vanakbori was also never confronted to the petitioner nor was it referred to in the chargesheet dated 11. 6. 1986 and the contents of this letter show that it is also based on the so called public appeal dated 2. 5. 6. 1986 which was sent by the Chief Engineer to the General Secretary of the Bijali Mazdoor Panchayat, Vanakbori was also never confronted to the petitioner nor was it referred to in the chargesheet dated 11. 6. 1986 and the contents of this letter show that it is also based on the so called public appeal dated 2. 5. 1986 said to have been issued by the petitioner and the contents of this letter do not include any allegation against the petitioner except to apprise the General Secretary of the Bijali Mazdoor Panchayat that any movement in the form of strike would be illegal and improper under the Industrial disputes Act and in case the persons going to such movement do not go on the work their salary will be deducted for those days on the basis of no work no pay and further, that the board was always ready for discussion and consideration. Then comes the last document dated 3. 5. 1986 which is again public appeal said to have been issued by the petitioner as general Secretary withdrawing the movement and calling upon the workers to go on regular duty. This document does not contain anything which can be read as evidence in support of the charges. The word evidence has definite meaning in the proceedings and none of these documents can be said to be of any evidentiary value in support of the charge which was levelled against the petitioner and more particularly when the Chief chemist who had made report dated 3. 5. 1986 was not presented before the I/c. Chief engineer on 11. 6. 1986 even to say that he had made this report as confidential office note or to justify the contents thereof. This confidential office note dated 3. 5. 1986 reported by the chief Chemist is narrative of the fact that the petitioner had gone to him and had told him that he had taken permission from the Chief Engineer for relieving the members of the unit and he had replied that he would confirm with the Chief Engineer to have alternative arrangements but the petitioner left the site with six persons named in this report. Such a narration given in this report in absence of Chief Chemist himself being present before the Chief Engineer could not be taken to be a piece of evidence against the petitioner unless the facts stated in this report or report itself would have been justified in presence of the petitioner on 11. 6. 1986. The public appeal dated 2. 5. 1986 said to have been issued by the petitioner calling upon the employees to go on agitation could not be read as evidence, more particularly when, it was not even referred to in the charge. In the report dated 16. 6. 1986 which is prepared by the competent officer i. e. I/c. Chief Engineer holding charge to be proved against the petitioner or i. e. written in the Chief Chemists report dated 3. 5. 1986 and the notice said to have been issued by the petitioner on 2. 5. 1986 and further fact that 116 employees were made to leave work by the petitioner have been incorporated so as to hold the charge to be proved. In the facts and circusmtances of the case, I am fully convinced that in the summary proceedings which were held against the petitioner the decision has not been taken on the basis of evidence. Schedule "e" (ii) under clause 8 as has been prescribed in Chapter 8 of Disciplinary Action is only prescribed form of chargesheet in summary proceedings but that by itself could not form the whole basis for the purpose of taking decision against the petitioner. The decision was not to be taken on the basis of chargesheet in Form E (ii) but on the basis of evidence which in the present case was totally wanting. It was further a case of no evidence even for the purpose of summary proceedings in which the petitioner had denied the charge levelled against him. The summary proceedings does not mean reading of the charge as proved. The summary proceeding would only mean trial without elaborate formalities which are otherwise prescribed in the ordinary course. It only means short, concised or reduced proceedings into a narrow compass but it does not mean that the authority holding the summary proceedings is to act on mere hearsay or the reports. The summary proceedings only implies substitution of short and quick remedy instead of elaborate process. It only means short, concised or reduced proceedings into a narrow compass but it does not mean that the authority holding the summary proceedings is to act on mere hearsay or the reports. The summary proceedings only implies substitution of short and quick remedy instead of elaborate process. Thus by resorting to the summary procedure, the regular process of holding inquiry in clause 6 i. e. to give a formal chargesheet in Schedule E (ii) and calling upon the delinquent employee to file written statement within reasonable time, oral statement and calling of witnesses etc. may not be followed but that does mean that the authority while taking summary proceedings may straight way proceed to take decision on the basis of the chargesheet and the denial by the concerned employee. Howsoever short may be the procedure but the evidence must be there on the basis of which the decision is to be taken. What is to be curtailed is the procedure and not the evidence. In the facts of the case it stands proved beyond any manner of doubt that the decision has been taken against the petitioner not on the basis of the evidence but by collecting the report from the Chief Chemist and by relying upon certain other documents which did not contain any evidence in support of the charge which was levelled against the petitioner. 16. 7. 1996 ( 18 ) THERE is yet another aspect of the matter in as much as under clause 8 the decision is to be taken on the evidence available. Obviously the evidence would mean the evidence which can be made use of against the delinquent employee subjected to the summary proceedings. In a given case any writing or document even if considered as an evidence without oral evidence, it may not be the evidence which can be made use of, such documents even if considered to be the evidence does not acquire the status of the evidence capable of being used unless the person to whose detriment and against whom such documents are to be used, is duly apprised of it so as to meet the same. In the facts of this case, it is clearly established that at the stage of the summary proceedings on 11. 6. In the facts of this case, it is clearly established that at the stage of the summary proceedings on 11. 6. 1986 when the chargesheet in Schedule E (ii) was given to the petitioner, the petitioner was not apprised of the Chief Chemists report dated 3. 5. 1986 nor the so called public appeal notice dated 2. 5. 1986 said to have been issued by the petitioner, the argument raised on behalf of the respondents is that the contents of the charges were sufficient to make the petitioner understand as to what was the charge he was to face. That may be so but apprising the delinquent-employee as to what was the charge he was to face is a different thing altogether than to make him known with regard to the material on the basis of which charge was sought to be proved against him and therefore unless the petitioner is put on his guard and made known about such material or documents which are to be used against him such material or document cannot be treated as an evidence which could be made use of against him and so also I find that in this case the decision in the summary proceedings against the petitioner has not been taken on the basis of the evidence which could be used against him to sustain the charge. ( 19 ) NOW coming to the question of prejudice, great stress was laid on behalf of the respondent that the petitioner has not suffered any prejudice on account of non-supply of these documents because the same were made available to him at the stage of show cause notice dated 25. 6. 1986. Factually it is correct that copies of seven documents along with the list were made available to the petitioner along with the show cause notice dated 25. 6. 1986 but the fact remains that these documents were not made available to him at the stage of summary proceedings on 11. 6. 1986 and yet the show cause notice is based on these documents which had been withheld from the petitioner and show cause notice itself is founded on the material which was not disclosed to the petitioner and about which he had no opportunity to say anything when he was confronted with the charge on two questions on 11. 6. 1986. 1986 and yet the show cause notice is based on these documents which had been withheld from the petitioner and show cause notice itself is founded on the material which was not disclosed to the petitioner and about which he had no opportunity to say anything when he was confronted with the charge on two questions on 11. 6. 1986. The learned counsel for the respondents submitted that in the reply to the show cause notice the petitioner has not stated that he has suffered any prejudice on account of the non-supply of these documents and as such nothing turns out in favour of the petitioner. On this aspect of the matter, it may be pointed out that in this regard both the sides i. e. petitioner as well as respondents have placed strong reliance on the decision of the Supreme Court rendered in the case of State Bank of Patiala and others vs. S. K. Sharma, 1996 (3) SCC Pg. 364. Mr. Girish Patel appearing on behalf of the petitioner has submitted that the entire proceedings held against the petitioner stand vitiated as the report dated 16. 6. 1986 is also based on undisclosed material and the show cause notice is also founded on this undisclosed material and the nonsupply of the relevant documents at the stage of inquiry on 11. 6. 1986 by itself is a breach of the summary procedure prescribed under Rule 8 and hence whether prejudice or no-prejudice proceedings stand vitiated. On the other hand Mr. Pandya and Mr. Panchal appearing on behalf of the Board has submitted that there is no substantive rule in summary proceedings requiring the Disciplinary Authority to supply copies of these documents and therefore a distinction has to be made between the case of "no opportunity and no adequate hearing" i. e. "between no notice/no hearing and no fair hearing" as has been laid down by the supreme court in the aforesaid case of State Bank of Patiyala. I have considered the submission made on behalf of both the sides in this regard with reference to what has been held by the Supreme Court in the aforesaid case of the State Bank of patiyala. The supreme Court in the aforesaid case has considered the question of violation of provision of substantive nature and the provision which may be procedural in character. The supreme Court in the aforesaid case has considered the question of violation of provision of substantive nature and the provision which may be procedural in character. It has been held that the substantive provisions has to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such cases. Now the substantive provision in the instant case is in clause 8 which requires decision to be taken on the basis of the evidence and whereas I have held that the decision has not been taken on the basis of the evidence which could be made use of against the petitioner, it is clear cut violation of the substantive provision and therefore to say that this provision stands substantially complied with by the supply of the documents at the stage of the show cause notice is no answer. As has been laid down by the Supreme Court itself, test of prejudice is not applicable in such cases. Besides this, it cannot be said in the facts of this case that in fact, the petitioner has not suffered any prejudice on account of nonsupply of these documents at the stage of summary proceedings on 11. 6. 1986. Had the Chief Chemists report dated 3. 5. 1986 been made known to the petitioner along with the so called notice of public appeal which had been issued by him on 2. 5. 1986, he could have contested the Chief Chemists report. Factually, he could have also explained the contents of the notice dated 2. 5. 1986. The petitioner may have very well made an attempt to show before the I/c. Chief Engineer that this report of the Chief Chemist was not correct and faithful description of the events which happened on the said date, that he was not responsible even if the employees who were working had left the work, that in issuing the notice/public appeal dated 2. 5. 1986. 5. 1986. he had only discharged his function as a General secretary of the Union to give effect to the decision which had been taken by the Union, whether the Union was recognised Union or not could not be considered as a ground against him, that he had permission of the Chief Engineer to ask the member to leave that even if there was any substance in whatsoever was alleged against him it stood mitigated with the issue of another public appeal dated 3. 5. 1986 whereby he had called upon the employees to bring an end to the movement and to report on duty. In absence of supply of these documents the petitioner was in fact deprived of real and effective opportunity to meet specific allegations which were contained in detail in the Chief Chemists report dated 3. 5. 1986 and it is transparently clear from the record that the report dated 16. 6. 1986, is based on these undisclosed documents and these undisclosed documents have been taken to be the evidence and this undisclosed material in its entirety form the sole basis of the show cause notice. It is the very foundation, bedrock and heart and soul of the show cause notice and as such violation of the substantive provision as contained in clause 8 is clearly established and it is also established that the petitioner has suffered a real prejudice and the proceedings as well as the show cause notice stand vitiated and once it is found that the proceedings and the show cause notice are vitiated the impugned order cannot be sustained on the basis that the copies of documents had been supplied with the show cause notice. In State Bank of Patiyala case (Supra) the Supreme Court has also laid down it as a principle in para 33 of the judgment at item No. 5 thereof that where inquiries are not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice, the same are held to be implied by the very nature and implace of the order/action. The court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. The court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between "no opportunity" and no "adequate opportunity" i. e. between "no notice"/"no hearing" and "no fair hearing". In the case of former, the order passed would be wholly violative to the extent of being void or nullity but in the latter case the effect of violation of the rule (audi alteram partem) has to be examined from the standpoint of prejudice. I have examined the contentions raised on behalf of both the sides. In this context from both the angles and It is a case in which the substantive privision of taking the decision on the basis of the evidence has been violated resulting into serious prejudice against the petitioner as a question of fact and therefore, the plea of theory of substantive compliance is not available to the respondent in this case. It is virtually a case in which the so called illusory opportunity is easily comparable with a case of no opportunity. If you simply read out the charge and take contents of the charge itself as the proof of all the charges with the aid of the undisclosed material how it can be said to be a case of affording any opportunity because the opportunity in the eye of law would mean real and effective opportunity, the question of adequacy apart. Even if it is taken to be a case of denial of adequate opportunity or a case of no fair hearing in the summary proceedings it would still stand vitiated because it has been held as a question offset in the facts and circumstances of this case that the petitioner has suffered a real prejudice in these proceedings. Even the arguments raised on behalf of the respondent that the petitioner has not included this grievance in his reply to the show cause notice is not sufficient to negative the petitioners claim in the facts of the present case. Right from the beginning the petitioner was convinced that the proposed notice of penalty was preconceived and he had categorically stated in the reply to the show cause notice that he does not know when the inquiry was conducted and how the management concluded the guilt against him. Right from the beginning the petitioner was convinced that the proposed notice of penalty was preconceived and he had categorically stated in the reply to the show cause notice that he does not know when the inquiry was conducted and how the management concluded the guilt against him. When the petitioner was convinced that the penalty was preconceived, proceedings were malafide and the petitioner was sought to be victimized, even if he would have raised this grievance in the reply to the show cause notice it would have met the same fate and it would have been just like a case of sheding tears and weeping before a blind person and therefore on such ground the petitioner cannot be prevented from raising all these grievances. While questioning the impugned orders in the body of the petition, the petitioner has raised the grievance in specific words in para 6 stating that no copies of the documents were given to the petitioner and an arbitrary decision had been taken. The similar averments have been made in paras 8 and 9 of the petition also. ( 20 ) THAT apart, it has to be considered that normal procedure of holding inquiry had been dispensed with and the respondent had taken resort to the summary procedure for the purpose of inflicting penalty against the petitioner based on the charge including the allegation of going on illegal strike which could also entail a criminal liability against the petitioner. In such cases when the normal procedure is given up and procedure provided in exception to the general rule is taken up so as to entail serious penal consequences against the delinquent employee including the criminal liability and prosecution, it becomes the bounden duty of the authorities who are concerned with the discharge of their obligation that summary procedure which has been taken resort to, is strictly followed in letter and spirit Rigours of such procedure must apply against the concerned authorities with full force and in such matters even little departure from the rule may be fatal to the proceedings and sufficient to vitiate the same. In this regard Mr. Girish Patel, learned counsel for the petitioner cited Supreme Court decision rendered in the case of ranjit Thakure vs. Union of India [air 1987 SC Pg. 2386. In this regard Mr. Girish Patel, learned counsel for the petitioner cited Supreme Court decision rendered in the case of ranjit Thakure vs. Union of India [air 1987 SC Pg. 2386. In this case, the Supreme court was of course considering the effect of violation of Sec. 130 (a) of the Indian Army act in the conduct of the Court Martial and held that non-compliance with the mandate of section 130 i. e. not putting question to the accused, whether he objects to be tried by the officer presiding the court, is an infirmity which goes to the root of the jurisdiction and without anything more, vitiates the proceedings. While it is not a case exactly of this nature and there is no question of lack of jurisdiction but it was certainly a case of summary proceedings and it has beeh laid down that contemplated procedural safeguards must be considered in the context of and corresponding to the plaintitude of summary jurisdiction and the severity "of the consequence that visits the person subjected to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. Wider the power, greater is the need for the restrainst in its exercise and correspondingly, the construction of the procedural safeguards envisaged by the statute must lean in favour of the person who is punished or sought to be punished. In para 5 of this judgment it has been concluded as under"if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. ""the" history of liberty" said the same teamed Judge has largely been the history of observance of procedural safeguards". . ( 21 ) THE dictum of the Supreme Court is therefore very clear that while execising the summary jurisdiction the procedure must be scrupulously observed. He that takes the procedural sword shall perish with that sword. ""the" history of liberty" said the same teamed Judge has largely been the history of observance of procedural safeguards". . ( 21 ) THE dictum of the Supreme Court is therefore very clear that while execising the summary jurisdiction the procedure must be scrupulously observed. In the instant case, it goes without saying that the respondent itself considered the supply of these documents to be essential and in fact non-supply of these documents goes to the root of the matter of effective opportunity so as to make use of documents as part of the evidence in the process of decision making and decision has to be based on the available evidence which could be used is very clear from the language of clause 8 itself and thus the non following of this part of clause 8 has its natural effect on the entire proceedings beyond 11. 6. 1986 including the competent officers report dated 16. 6. 1986, Show cause notice, impugned order dated 11. 7. 1986 removing the petitioner from service confirmation of the same order by the next higher authority, as also the order passed by the Appellate Authority rejecting the petitioners Appeal. Hence the proceedings as well as the orders as above are rendered invalid in the eye of law for reasons of failure to follow the procedure prescribed under clause 8, breach of principles of natural justice, denial of effective opportunity by withholding the relevant document, taking the decision in absence of evidence which could be used against the petitioner and reliance placed on undisclosed material and the question of prejudice as has been discussed hereinabove. ( 22 ) IT is also to be considered that in the reply to the show cause notice, the petitioner had categorically stated that the notice of proposed action was preconceived that the action was arbitrary and malafide, the management intended to victimize him for ulterior reasons because he was General Secretary of Bijali Mazdoor Panchayat, Vanakbori branch for the allegation of unlocking and forcibly taking possession of the quarter is false and far from truth and the notice had been issued to victimize him. Despite this plea being there in the reply to the show cause notice, I find that this plea has not at all been dealt with in the impugned order dated 11. 7. Despite this plea being there in the reply to the show cause notice, I find that this plea has not at all been dealt with in the impugned order dated 11. 7. 1986 nor in the order passed by the aappellate Authority during the pendency of these proceedings. The order dated 1l7. 1986 removing the petitioner from service is an order passed in a slip-shod manner, as cryptic order and tenor of the order does not inspire the confidence that the same has been passed after active and objective application of mind. After making bald reference to the written replies to the charge and show cause notice and investigation papers the Chief Engineer has straight way concluded in the very fourth and fifth line of the order that on 3. 5. 1986 the petitioner had supported and instigated some group of workers and after quoting the language of the charge he has recorded that the charges shown in the summary charge report have been proved, and the charges proved are serious in nature and accordingly removal order is passed. In this order at item no. 6 in the beginning the Chief Engineer has also referred to the investigation papers and one is only left tocontemplate and speculate as to what are those investigation papers which are relied upon. lt clearly establishes that the impugned order is based on investigation papers and what were these investigation papers is not known. No such investigation papers appear to have been made available to the petitioner at any stage and this term investigation papers finds place for the first time in the impugned order dated 11. 7. 1986 and at no stage including the stage of show cause notice there is any reference to anything like "investigation papers" and in the order not a word has been said and not a little finger has been raised against the petitioners plea of victimization and malafide what to talk of dealing with the same. 7. 1986 and at no stage including the stage of show cause notice there is any reference to anything like "investigation papers" and in the order not a word has been said and not a little finger has been raised against the petitioners plea of victimization and malafide what to talk of dealing with the same. If that is the approach in which the matters are taken up in summary proceedings where the question of service of an employee is involved, wherein his job is at stake, one can only regret about the awareness of the requirements of summary proceedings by those who are at helm of the affairs and responsible to deal with such matters resulting into their own order to be illegal, when brought for judicial scrutiny before the court. Plea of victimization and malafide taken by the petitioner in the reply to the show cause notice was also essential to be dealt with for the simple reason that the manner in which the proceedings were taken against the petitioner from the very beginning, even if not positively malafide they certainly smell a sense of lack of bonafides on the part of the concerned authorities and leading to the case of victimization as a consequence. The chain of events show that the allegations of strike and related misconduct were with reference to the point of time way back in may, 1986, on the very same date the Chief Chemist had also made report which had been made the basis to chargesheet the petitioner but nothing was done on this report dated 3. 5. 1986 untill 15. 5. 1986, when the petitioner is alleged to have unlocked the quarter and it is only on 15. 5. 1986 that he is placed under suspension. The suspension order is passed on the charges of unlocking the quarter as well as charge of misconduct on 3. 5. 1986. If the summary procedure was to be resorted against the petitioner, straight way the decision was to be taken in the matter in the shortest possible time and the report of the Chief Chemist was available with the authority on 3. 5. 1986, nothing prevented the authorities from proceeding against the petitioner by way of summary proceedings from 4. 5. 1986 itself but nothing was done untill 15. 5. 5. 1986, nothing prevented the authorities from proceeding against the petitioner by way of summary proceedings from 4. 5. 1986 itself but nothing was done untill 15. 5. 1986 that is the date on which he is alleged to have unlocked the quarter and on the very same day the suspension was ordered for simple reasons that is. unlocking the quarter as also the misconduct dated 3. 5. 1986. Lateron the charge of unlocking the quarter was bifurcated from the charge of misconduct dated 3. 5. 1986 when the petitioner took the plea that he had an order of allotment in his favour issued by the competent Authority on 15. 5. 1986. The petitioner was in fact, made the subject matter of two distinct charges. One with regard to unlocking the quarter and occupying it forcibly in an unauthorised manner and the other one was chargesheet which has resulted into present impugned order. The facts and circumstances of this case right from 3. 5. 1986 to 15. 5. 1986 do indicate, raise an inference sufficient to create an impression upon any prudent mind that in fact the act of unlocking the quarter on 14. 5. 1986 annoyed the authorities. The petitioner has placed on record copy of the order of allotment dated 15. 5. 1986 (Annexure "h") in which the petitioners name has been included at Sr. No. 4, he has been allotted quarter E/3-6/1. May be that act of unlocking the quarter had taken place on 14. 5. 1986 and this letter of allotment was issued on 15. 5. 1986 and therefore, technically it can be said that on 14. 5. 1986 the quarter had not been allotted to him. When the quarter has been allotted to more than one persons by a common order and one of them was the petitioner who is also the General Secreatary of Trade Union, it can be reasonably inferred that he must have come to know about the decision of the allotment of this quarter on 14. 5. 1986 and therefore in anticipation of the receipt of the formal letter of allotment dated 15. 5. 1986 he may have occupied the quarter on 14. 5. 1986. 5. 1986 and therefore in anticipation of the receipt of the formal letter of allotment dated 15. 5. 1986 he may have occupied the quarter on 14. 5. 1986. in fact, it was given out by the learned counsel for the petitioner during the course of arguments that for this act of unlocking and taking its possession forcibly the petitioner had been criminally prosecuted for offences under Sees. 448 and 427 IPC but he has been acquitted by the Additional Sessions Judge, anand on 7. 10. 1994 in Criminal Appeal No. 13/90. In the wake of this background, the petitioners plea, that he had been removed from service for ulterior motive and extraneous reasons, for a colateral purpose and for reasons which were not germane, can not be taken to be without any basis and yet in the impugned order this plea which had been taken by the petitioner in specific terms has not been considered and that is also one of the grounds on which the impugned order must be held to be illegal. The Supreme Court in case of Mohammad Ibrahim vs. The State of Andhra Pradesh and Others, AIR 1970 SC Pg. 1399, has held that the plea of malafide averred but not considered may vitiate the order. Of course it was held in the context of the pleadings in a petition before the court in which the malafides were pleaded and the petition was dismissed without considering the plea of malafide, but the principle is that if a specific plea is taken before the authority discharging quasi-judicial or judicial functions such authority has to apply its mind on the plea raised before it and the same has to be dealt with and answered. Even if it is not dealt with in detail like judicial order it has to be dealt with briefly, even if the proceedings are summary proceedings. In the instant case, there is no reference to the petitioners plea of malafide and victimization in the impugned order dated 11. 7. 1986. The learned counsel for the respondent Board submitted that the petitioner had not alleged malafide against any particular authority and therefore there is no question of dealing with such a plea. This reply on behalf of the learned counsel for the respondent is far from convincing and is also contrary to the settled position of law. 7. 1986. The learned counsel for the respondent Board submitted that the petitioner had not alleged malafide against any particular authority and therefore there is no question of dealing with such a plea. This reply on behalf of the learned counsel for the respondent is far from convincing and is also contrary to the settled position of law. When the state action is challenged on the ground of malafides and trade union activist takes plea of victimization, validity of the State union is to be examined as a whole and while challenging the state action on the ground of malafides, it is not always necessary for any party to name any particular individual or authority who may have acted on behalf of the state. The petitioner could not have known as to who had played what role at what point of time against him. He had therefore challenged the state action as a whole and had in fact submitted in the reply to the show cause notice that it is the preconceived decision against him and that the management intended to victimize him for ulterior reasons. He was General Secretary of Bijali Mazdoor Panchayat. Thus, the action was being challenged on the bundle of facts giving rise to the plea of malafide and victimization. In fact, I am fortified in taking this view on the authority of the Supreme Court decision rendered in the case of State of Punjab vs. Tarlok Singh, [air 1971 SC Pg. 1220] wherein the Supreme Court has also observed that in case where the validity of State action is under challenge, it would be placing a heavy burden on the petitioner alleging malafides to prove it by positive evidence and in such matters the facts giving rise to the inference of malafide against the state action are to be considered. ( 23 ) EVEN the order passed by the Appellate Authority during the pendency of this special Civil Application on 11/14-11-1986 does not show that the matter was considered objectively. The Appellate Authority, in fact, after referring to the allegations against the petitioner instead of dealing with his grievance has gone a step further than the disciplinary Authority to say that"looking to the atmosphere of terrorism created by Shri suthar it was practically impossible to conduct enquiry, summary proceedings held against him are in order ". The Appellate Authority, in fact, after referring to the allegations against the petitioner instead of dealing with his grievance has gone a step further than the disciplinary Authority to say that"looking to the atmosphere of terrorism created by Shri suthar it was practically impossible to conduct enquiry, summary proceedings held against him are in order ". He has affirmed the decision of the Chief Engineer and rejected the appeal. This order is again cryptic order passed in a slip-shod manner and does not inspire the confidence that even at the stage of appeal the petitioners case received due and fair consideration, ( 24 ) UPSHOT of the aforesaid discussion is that the summary proceedings held against the petitioner right from 11. 6. 1986 including the report of the competent officer dated 16. 6. 1986, show cause notice dated 25. 6. 1986, the impugned order of removal from service dated 11. 7. 1986 and the appellate order dated 11/14- 11-1986 passed during the pendency of these proceedings are held to be illegal and both the orders are hereby quashed and set aside with all legal consequences to follow. Since the impugned order of removal, from the service has been set aside on the ground that the decision has been taken against him in violation of the relevant rules, should the respondent still decide to hold the proceedings against the petitioner, again even at this stage, when the matter is about ten years old, it will be open for them, but in that case, if the proceedings are held in the second inning the entire dues for the period from the date of his removal from service upto date in accordance with law shall have to be paid to the petitioner before starting proceedings again by treating the petitioner to be continuing in service in terms of the suspension order dated 15. 5. 5. 1986, because the impugned order of removal from service has been quashed and set aside and only after paying the entire dues upto date by treating him to be in service as suspended employee, the respondents may initiate the proceedings in the second inning and if at all the respondent choose this course of action again, they would also consider as to whether still it is necessary to hold any summary proceedings against the petitioner or now that the tempers have cooled down and there is no situation like strike and the petitioner has already remained out of employment for all these years, it will be in the fitness of things to hold the inuiry by way of normal procedure but it will be entirely forthe concerned authority to take appropriate decision in this regard keeping in view the observations made above and the entire background. In case the respondents desire to hold proceedings de novo against the petitioner even at this stage the decision to this effect shall be taken within two months from the date the certified copy of this order is served upon the respondents. If no decision is taken within a period of two months as aforesaid the petitioner shall not suffer the suspension any more and shall stand reinstated with all consequential benefits with the expiry of the period of two months as aforesaid. In case any proceedings are started denovo such proceedings shall be expedited at the earliest possible opportunity but in no case beyond the period of six months from the date such proceedings are started. The result of the aforesaid discussion is that this Special civil Application Succeeds and the same is accordingly allowed. The impugned orders are quashed and set aside with all legal consequences to follow and directions as above. Rule is made absolute in the terms as above. No order as to costs. .