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2004 DIGILAW 621 (ALL)

Ashok Kumar Sharma v. State of U. P

2004-03-19

BHANWAR SINGH

body2004
( 1 ) SHRI Ashok Kumar Sharma, who was an employee of ganga Kisan Sahkari Chini Mills Limited, Morna, District muzaffarnagar (hereinafter referred to as Sugar Mills), has filed this petition seeking a writ in the nature of certiorari quashing the orders No. 1814 and 1815 - both dated 8. 9. 1997, as contained in Annexures 11 and 12 respectively. Whereas, the first order was a notice calling for the petitioners reply in pursuance of this Courts order dated 1. 9. 1997, the other order (Annexure-12) was his suspension order. Another writ in the nature of certiorari quashing the impugned order dated 15/16. 11. 1999 (Annexure-19) has also been prayed for. Further, he has requested for a writ in the nature of mandamus commanding the opposite parties not to hold any enquiry against him in pursuance of the impugned order (Annexure-19 ). He has also prayed for an appropriate writ invoking this Courts extraordinary jurisdiction under Article 215 of the Constitution of India by punishing the opposite parties for having committed deliberate and wilful contempt of this Courts orders dated 1. 9. 1997 and 1. 10. 1999. By virtue of the order dated 1. 9. 1997, this Court had stayed the operation of the order dated 30. 7. 1997. By means of the other order, the suspension order of the petitioner dated 30. 7. 1997 was stayed. The petitioner has also sought for quashing of the order dated 8/9. 2. 2000 (Annexure-27), by virtue of which, the petitioners services were terminated with immediate effect. Brief facts of this petition are as follows: ( 2 ) THE petitioner applied for appointment on the post of stenographer in the Sugar Mills Morna by moving an application dated 15. 9. 1984, submitted to the General Manager of the sugar Mills. The petitioner was directed to work as stenographer to the General Manager on a consolidated salary of Rs. 460/- per month. This was a stop-gap arrangement until a regular selection test was conducted. The petitioner submitted his joining report on the same date and since then, he started to work as a Stenographer. The selection for the post of Typist-cum-Clerk and one post of Stenographer was held on 19. 2. 1985, i. e. more than six months after he joined his duty on ad hoc basis. The petitioner submitted his joining report on the same date and since then, he started to work as a Stenographer. The selection for the post of Typist-cum-Clerk and one post of Stenographer was held on 19. 2. 1985, i. e. more than six months after he joined his duty on ad hoc basis. The Selection Committee selected the petitioner for the post of Stenographer and the recommendations of the Selection Committee were duly approved and accepted by the Chairman/administrator of the sugar Mills- Society. The appointment letter was issued to all the selected candidates including the petitioner. Although, the petitioner was selected for the post of Stenographer but mistakenly, in the order dated 1. 4. 1985, issued by the General manager, the post, on which the petitioner was selected, was mentioned as "typist". Even from the allocation of the work assigned to the selected candidates, it was evident that he was appointed as Stenographer. In the records, memos and instructions issued from time to time by the General Manager of the Society, the petitioner was described as Stenographer. The petitioner made a number of representations requesting for correction of the mistake in the nomenclature of the post on which he was appointed. The General Manager after conducting a thorough enquiry arrived at a conclusion that the petitioner ought to have been appointed as Stenographer instead of a Typist. Not only this but he was also paid his salary in the pay-scale admissible to the post of a stenographer. However, the Chairman of the Society cancelled the order dated 30. 1. 1987 whereby the petitioner was held to have been appointed as Stenographer and issued a fresh order on 26. 7. 1997. Consequent upon the order dated 26. 7. 1997, the general Manager passed an order dated 30. 7. 1997 posting the petitioner as a Typist. No opportunity of hearing was afforded to the petitioner while changing his designation and, as such, an arbitrary order was issued. He had not received any show cause notice. In these circumstances, the petitioner was obliged to file writ petition No. 4944 (S/s) of 1997 before this court challenging the order dated 30. 7. 1997. The High Court stayed its operation. After service of the said stay order, the general Manager of the Sugar Mills placed the petitioner under suspension vide order dated 8. 9. 1997. In these circumstances, the petitioner was obliged to file writ petition No. 4944 (S/s) of 1997 before this court challenging the order dated 30. 7. 1997. The High Court stayed its operation. After service of the said stay order, the general Manager of the Sugar Mills placed the petitioner under suspension vide order dated 8. 9. 1997. A charge-sheet was also issued to him in regard to the allegations which stood finally determined 10 years before. As a matter of fact, one fake complaint was acted upon by the authorities. One Shri raghu Raj Singh lodged the complaint with the allegations that the petitioner had fraudulently managed to be appointed as stenographer. The said complaint was thoroughly investigated in the year 1988 and after completion of enquiry and investigation, it was found that there was no substance in the complaint nor there was any irregularity in the appointment of the petitioner as Stenographer. The opposite party No. 7 Shri mukund Murari posted as General Manager of the Sugar Mills in the year 1997 was annoyed with the petitioner when the latter obtained the stay order of this Court and submitted to him for compliance. He abused the petitioner and treated him very shabbily and also made objectionable remark against the High court. The petitioner was also threatened of dire consequences of his having approached the High Court. Since this Court ,vide its order dated 1. 9. 1997 left it open for the opposite parties to pass appropriate orders after affording an opportunity to the petitioner, the General Manager issued the first order dated 8. 9. 1997 directing the petitioner to submit his reply within 48 hours and on the same date, passed his suspension order. ( 3 ) THE enquiry officer conducted the disciplinary proceedings on the basis of the charge-sheet issued against the petitioner and submitted his enquiry report on 7. 9. 1998 exonerating the petitioner and while passing the exoneration order, the enquiry officer suggested to verify from Shri bhuvneshwar Singh, the then General Manager about the real fact regarding the petitioners appointment as Stenographer or a Typist. The General Manager wrote a letter dated 22. 9. 1998 to Shri Bhuvneshwar Singh, then posted as Vice-Chairman, mussorrie Dehradoon Development Authority. In reply to the said letter, Bhuvneshwar Singh confirmed that the petitioner was appointed on the post of Stenographer. The General Manager wrote a letter dated 22. 9. 1998 to Shri Bhuvneshwar Singh, then posted as Vice-Chairman, mussorrie Dehradoon Development Authority. In reply to the said letter, Bhuvneshwar Singh confirmed that the petitioner was appointed on the post of Stenographer. One Shri narendra Singh, Advocate and Labour Law Advisor on being contacted by the General Manager suggested to appoint the petitioner as Stenographer. However, the General Manager was thoroughly prejudiced against the petitioner and he, therefore, lodged an F. I. R. against him under Sections 420, 468 and 471 I. P. C. . The investigating officer of police station bhopa, district Muzaffarnagar submitted the enquiry report exonerating the petitioner again and the final report had been accepted by the Court of Iind Additional Chief Judicial magistrate, Muzaffrarnagar. In the meantime, the opposite party No. 5 rejected the enquiry officers report and issued orders for a fresh enquiry by appointing one Shri B. N. Gupta as enquiry officer. Shri Gupta was then posted as Chief accountant in the Sugar Mills, Morna. Virtually, such an order for enquiry was illegal and arbitrary as not once but many a time, enquiries were conducted earlier and the petitioner was held to be a duly appointed Stenographer. Therefore, the order dated 15/16. 11. 1999 directing for a fresh enquiry being arbitrary and unreasonable in nature is liable to be quashed. Further, the orders of the General Manager treating the petitioner as a suspended Typist amounted to wilful and deliberate disobedience of this Courts stay orders dated 1. 9. 1997 and 1. 10. 1999. In fact, such an action of the General manager was an outcome of ill-will which had emanated from the ante- chamber of mind of the opposite party No. 5. The petitioner challenged the order dated 15/16. 11. 1999, passed by the opposite party No. 5 and this Court, vide its order dated 30. 12. 1999, directed the opposite parties to allow the petitioner to work as Stenographer. However, the petitioner, in the meantime, received a notice dated 4. 2. 2000 to show cause as to why action should not be taken on the basis of the enquiry report submitted by the newly appointed enquiry officer. The enquiry officers report prima facie seemed to be nothing but ipse dixit - based on presumptions only. However, the petitioner, in the meantime, received a notice dated 4. 2. 2000 to show cause as to why action should not be taken on the basis of the enquiry report submitted by the newly appointed enquiry officer. The enquiry officers report prima facie seemed to be nothing but ipse dixit - based on presumptions only. The entire enquiry report was based on the earlier reports submitted by Shri tayal whereby the latter exonerated the petitioner but in a most illegal and arbitrary manner and without there being any evidence against the petitioner, the enquiry officer reversed the findings and held the petitioner guilty of manipulations merely on the basis of presumptions. As a matter of fact, the petitioner has been subjected to some deep-rooted conspiracy and the report reveals that the petitioner handed over the relevant files pertaining to his appointment to Shri Ghanshyam pandey. The enquiry officer did not take into account that the petitioner was a trained Stenographer having taken his training in Shorthand Typing from Annapurna Commercial College, daliganj, Lucknow. Disbelieving the certificate issued by the said College without any cogent reason was not sustainable. It was wrongly held that the petitioner got the word, "stenographer" added against his name surreptitiously in the orders pertaining to his selection and that of other Typists. The petitioner submitted further that the enquiry officer was so much prejudiced against him that the copies of his statement were not furnished to him. However, the petitioner submitted reply to the show cause notice but the opposite party No. 5 without considering the genuine and just grievance of the petitioner proceeded to pass the impugned order dated 8/9. 2. 2000 terminating his services. The opposite party No. 5 failed to take into consideration the legal aspect of the matter that the burden to prove the charges lay upon the department. The enquiry officer shifted the burden of proof on the petitioner. The impugned order reveals that some enquiry was also held some time by Shri M. S. Rathore and Shri N. Ravi shanker in the year 1989 which might have been conducted by them at the back of the petitioner. At no point of time, the petitioner was associated with any such enquiry in any manner. The copies of the enquiries reports submitted by the aforesaid two officers were not supplied to the petitioner. At no point of time, the petitioner was associated with any such enquiry in any manner. The copies of the enquiries reports submitted by the aforesaid two officers were not supplied to the petitioner. In the year 1997 also, as recited in the impugned order, one Shri N. C. Chaturvedi submitted some report against the petitioner but the latter was not associated with any such enquiry. In this way, the disciplinary proceedings against the petitioner have been conducted in a most illegal and arbitrary manner and also in utter violation of the principles of natural justice in as much as the documents mentioned in the charge-sheet were not supplied to him. It is on the basis of these averments that the petitioner has sought for quashing of the termination order dated 8/9. 2. 2000 and other orders as mentioned above. ( 4 ) THE opposite parties contested the petition by filing the counter affidavit of Shri S. K. Sethi, an Assistant Accountant working in the office of Sugar Mills. He asserted in his counter affidavit that the petitioner was appointed as a Typist in the sugar Mills and in the original order/list of appointments, he was shown as Typist only. Since the petitioner was working in the office of the General Manager, he manipulated the record and altered his rank and status to that of Steno. As a matter of fact, no selection was held for the post of Stenographer nor he was appointed as a Stenographer. Accordingly, he was, vide order dated 30. 7. 1997, directed to work as Typist. ( 5 ) IT is relevant to mention that he filed a writ petition no. 21313 of 1997 before this Court at Allahabad seeking a relief for a higher grade of pay-scale. The said writ petition is pending in the Court. An enquiry was set up against him and he was served a charge-sheet to explain his conduct. It was found from the material on record that the petitioner was appointed as a Typist only and he manipulated to obtain an order dated 30. 1. 1987 endorsing his appointment for the post of Steno-Typist to the General Manager but the matter was reviewed and a fresh order was issued on 30. 7. 1997 directing him to work on the post of Typist only. The petitioner was afforded an opportunity to explain his conduct in the manipulations as revealed above. 1. 1987 endorsing his appointment for the post of Steno-Typist to the General Manager but the matter was reviewed and a fresh order was issued on 30. 7. 1997 directing him to work on the post of Typist only. The petitioner was afforded an opportunity to explain his conduct in the manipulations as revealed above. It was also asserted that the petition was not maintainable at the Lucknow Bench of the allahabad High Court as the jurisdiction over the Morna Sugar mills lies with the principal seat of Allahabad. In this way, the writ petition is liable to be dismissed on account of the lack of territorial jurisdiction. He should have approached an Industrial tribunal. ( 6 ) MR. Sethi filed another counter affidavit on 1. 3. 2000 and stated that the petitioner on the basis of the enquiry report submitted against him had been removed from service. His petition has, therefore, become infructuous. He has an alternative remedy of filing a statutory appeal. Thus, in view of an alternative remedy being available to him, this petition is liable to be dismissed. ( 7 ) TAKING further technical grounds, Shri Sethi asserted in his counter affidavit that the Sugar Mills Morna is a separate entity having its own bye-laws and separate service conditions for its employees and though the said Cooperative Mill is affiliated with the apex body, namely, U. P. Cooperative Sugar factory Federation, it does not come within the definition of state as defined under Article 12 of the Constitution of India and, therefore, from that angle also, this petition against the morna Sugar Mills is not maintainable. The state does not exercise deep and pervasive control over the Morna Sugar Mills, hence, it is not an instrumentality or agency of the State government. The Standing Orders framed by the Cooperative sugar Mills are applicable in the case of the petitioner. These standing Orders have been framed under Industrial employees (Standing Orders) Act, 1947. In view of the standing Orders and the Act, the remedy for the petitioner lies in the Labour Court under U. P. Industrial Disputes Act and not before this Court under Art. 226 of the Constitution of India. These standing Orders have been framed under Industrial employees (Standing Orders) Act, 1947. In view of the standing Orders and the Act, the remedy for the petitioner lies in the Labour Court under U. P. Industrial Disputes Act and not before this Court under Art. 226 of the Constitution of India. ( 8 ) AS regards the merit of the petitioners contention, Shri sethi stated that the selection to the post of Typist was conducted after the posts were advertised in leading newspapers and the Selection Committee interviewed all the 32 applicants on 19. 2. 1985 and after the process of interview, marks were awarded to the candidates. The administrator/district Magistrate, Muzaffarnagar approved the list of the selected candidates on 21. 3. 1985. The name of the petitioner figured at serial No. 3 in the select list and he was selected as recited earlier as a Typist along with other six candidates. Accordingly, they were issued appointment letters and the petitioner joined on the same post. Although, the posts of Store Keeper and Stenographer were advertised by the sugar mill on 25. 8. 1984 and 27. 8. 1984 but neither any interview was held nor any appointment was made by the selection Committee. Earlier also, a test was held on 30. 9. 1983 for selection of a Stenographer but no candidate including the petitioner was found suitable. In these circumstances, no selection to the post of Stenographer was held and therefore, question of appointment of the petitioner on the said post had not arisen at all. It was denied by Mr. Sethi that an enquiry pertaining to this controversy was held in pursuance of the order of the Joint Managing Director of the Sugar Mills. As a matter of fact, no such enquiry was ever conducted. In these circumstances, the order dated 8/9. 2. 2000 dismissing the petitioner from service is just, legal and proper. Therefore, this petition deserves to be dismissed. ( 9 ) THE first objection raised by the opposite parties pertains to the territorial jurisdiction of this Court. Mr. Raghvendra kumar Singh, learned counsel for the opposite parties submitted that since the Sugar Mills Morna is situtated in district Muzaffarnagar, which lies within the territorial jurisdiction of principal seat of the Allahabad High Court, the lucknow Bench could not have entertained this petition nor it can be decided here. Mr. Raghvendra kumar Singh, learned counsel for the opposite parties submitted that since the Sugar Mills Morna is situtated in district Muzaffarnagar, which lies within the territorial jurisdiction of principal seat of the Allahabad High Court, the lucknow Bench could not have entertained this petition nor it can be decided here. In support of his argument, learned counsel relied upon the famous decision of Honble Supreme court on the issue of jurisdiction between Allahabad High Court and its Lucknow Bench in, "nasiruddin versus State transport Appellate Tribunal AIR 1976 SC 331 ". The apex Court delving upon the issue held that if the cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at allahabad or Lucknow. If cause of action arises in part within the specified areas in Oudh, it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action has arisen. The Court will have to find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action. ( 10 ) IT may be relevant to note that the petitioner Shri Ashok kumar Sharma challenged the orders dated 8. 9. 1997, as contained in Annexures 11 and 12. A perusal of the first order appears to indicate that the petitioner was asked to submit his explanation in the matter within 48 hours and the said order was issued in compliance of an order of this Court dated 1. 9. 1997 passed by the Lucknow Bench of the Allahabad High court in writ petition No. 4944 (S/s) of 1997. The other order of the same date, i. e. 8. 9. 1997 is the suspension order issued by the General Manager of the Sugar Mills. The General Manager, sugar Mills issued first order in compliance of this Courts order dated 1. 9. 1997 whereby a liberty was given to the opposite parties to pass appropriate orders after affording an opportunity of being heard. It may be significant to mention that the petitioner filed earlier writ petition No. 4944 (S/s) of 1997 challenging the order dated 30. 7. 9. 1997 whereby a liberty was given to the opposite parties to pass appropriate orders after affording an opportunity of being heard. It may be significant to mention that the petitioner filed earlier writ petition No. 4944 (S/s) of 1997 challenging the order dated 30. 7. 1997 whereby he was asked and deputed to work as a Typist and not as a stenographer. This Court intervened and issued an interim order. For better understanding, the said order dated 1. 9. 1997 of this Court may be quoted as below: "shri Rakesh Sharma has accepted notice on behalf of opposite parties 3 to 6, shall filed counter affidavit within three weeks. Rejoinder affidavit may be filed within one week thereafter. List thereafter. Meanwhile, operation of the order dated 30 July, 1997 contained in Annexure No. 1 to the writ petition is stayed. However, it shall be open to the opposite parties to pass appropriate orders after affording an opportunity to the petitioner for being heard in the matter. Sd/-A. N. Gupta 1. 9. 1997" ( 11 ) DR. L. P. Misra, learned counsel for the petitioner contended that although the chapter of the enquiry had been closed in the year 1988 with the result of the investigation that there was no irregularity in the appointment of the petitioner as stenographer, yet Shri Mukund Murari, the then General manager of the Sugar Mills racked the issue again on account of his personal ill-will with the petitioner and passed the order dated 30. 7. 1997 directing for change of the petitioners cadre from that of a Stenographer to the Typist. As the order was arbitrary and unreasonable passed without any opportunity of hearing having been afforded to him, this Court intervened in terms of the stay order as quoted above but left it open to the opposite parties to pass appropriate orders after affording an opportunity to the petitioner for being heard in the matter. As the General Manager passed both the impugned orders in compliance of the said order of this Court, the cause of action arose for the petitioner to challenge those orders before this bench. The Court would not entertain the argument that earlier writ petition No. 4944 (S/s) of 1997 was wrongly filed before this Bench as in that eventuality, it would become a infinite question to be answered. Dr. The Court would not entertain the argument that earlier writ petition No. 4944 (S/s) of 1997 was wrongly filed before this Bench as in that eventuality, it would become a infinite question to be answered. Dr. L. P. Misra also referred to the order dated 4. 3. 1988, passed by the Joint Managing director-II, U. P. Cooperative Sugar Factories Federation limited, Lucknow pertaining to the enquiry to be conducted in the matter of the petitioners appointment as Stenographer. Apart that, the said order also sparked the issue and gave rise to a cause of action within the territorial jurisdiction of the lucknow Bench; fact remains that this Court at its Lucknow bench issued an order on 1. 9. 1997 in writ petition no. 4944 (S/s) of 1997 and stayed the operation of the order by virtue of which the petitioner was assigned the job of a Typist and further, left to the discretion of the opposite parties to pass appropriate orders. This order of this Bench gave rise to a cause of action as the General Manager, Sugar Mills picked up the thread and swung into action out of the liberty granted by this Court to proceed afresh in the matter after affording adequate opportunity of hearing to the petitioner. He then passed two orders on the same date, i. e. 8. 9. 1997, directing him first, to submit his reply within 48 hours and then placing him under suspension. During the pendency of this petition, the enquiry against the petitioner was completed and even the enquiry report referred to the order of this Court. The General manager, Sugar Mills in his order dated 4. 2. 2000 (Annexure-23)referred to this Courts order dated 20. 1. 2000 and it was in furtherance of the said direction that the petitioner was served with a show cause notice dated 4. 2. 2000. Obviously thus, it is more than evident that a part of cause of action accrued to the petitioner at Lucknow and in view of the law laid down by the apex Court in Nasiruddins case, the writ petition is maintainable here at Lucknow Bench of the Allahabad High court. It may be relevant to refer to some of the important findings recorded by the Supreme Court in Nasiruddins case (Supra ). It was categorically held that there is no permanent seat of Court at Allahabad. It may be relevant to refer to some of the important findings recorded by the Supreme Court in Nasiruddins case (Supra ). It was categorically held that there is no permanent seat of Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order. "the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. " "the expression, "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within the Oudh areas, then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh, then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. " ( 12 ) FOLLOWING the principle of law laid down by the apex Court and keeping in view that the cause of action arose for the petitioner to file this petition at Lucknow Bench when the Joint managing Director-II, U. P. Cooperative Sugar Factories federation Limited ordered for enquiry into the matter of the petitioners appointment and further taking into consideration that the main cause of action had arisen when this Court directed on 1. 9. 1997 in writ petition No. 4944 (S/s) of 1997 the opposite parties to take appropriate action after hearing the petitioner, I hold that this Bench at Lucknow has the jurisdiction to entertain and decide this petition. It was in pursuance of, as repeatedly said above, the said order that the then General Manager, Sugar Mills first asked the petitioner to submit his reply within 48 hours and then placed him under suspension. Both these orders were initially challenged in this petition. It was in pursuance of, as repeatedly said above, the said order that the then General Manager, Sugar Mills first asked the petitioner to submit his reply within 48 hours and then placed him under suspension. Both these orders were initially challenged in this petition. It is different that subsequently, that is during the pendency of the petition, the General Manager issued a dismissal order which too has been challenged by way of amendment of the writ petition and the relief column. The crux remains that Lucknow Bench is fully competent to hear and decide this writ petition. ( 13 ) THE second technical objection raised on behalf of the opposite parties is that the petitioner failed to avail the alternative remedy of filing an appeal before the appropriate authority. ( 14 ) IN this regard, it was submitted by the learned counsel for the petitioner that deriving advantage of this Courts order dated 1. 9. 1997, the General Manager, Sugar Mills asked the petitioner to explain as to why action be not taken against him and without waiting for his reply placed him under suspension and ignoring the fact that the first enquiry officer exonerated the petitioner of the charge of any manipulation on his part, issued suspension order violating the principles of natural justice and where the established tenets of the justice are alleged to have been violated, the argument of alternative remedy being available to the petitioner loses its significance. In this regard, Dr. L. P. Misra referred to the apex Court decision in, "whirlpool Corporation versus Registrar of trade Marks and others (1998)8 SCC 1 ". The Honble supreme Court held that there is no constitutional bar to the high Courts jurisdiction under Art. 226 of the Constitution even if an alternative remedy was available to a petitioner. The honble Court held that the plea of alternative remedy would not operate as bar in at least three contingencies - (i) where the writ petition seeks enforcement of any of the Fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or proceedings are held without jurisdiction or vires of Act is challenged. ( 15 ) IN the case in hand, the petitioners contention is that the cadre of the petitioner was changed without giving him an opportunity of being heard and when he succeeded in obtaining a stay order, he was formality sake asked to submit his explanation but placed under suspension without waiting further either for his reply or for a fact finding report, absolutely ignoring the report of an enquiry officer to the effect that the petitioner had not manipulated or changed his cadre in any way. The confirmation of the General Manager who appointed the petitioner, to the effect that his appointment was made as a Stenographer was also altogether ignored by the general Manager while issuing the impugned orders (Annexures 10 and 11 ). On the face of these averments, it appears to be sustainable that this petition was maintainable even if the petitioner could have challenged his suspension or removal order by way of filing an appeal. Therefore, I am of the opinion that the argument of the opposite parties counsel that the petitioner could have filed this petition only after exhausting or availing alternative remedy is not sustainable, hence rejected. ( 16 ) THE third technical ground in sequence of the argument about this petition being not maintainable is that the Sugar mills Morna is a Cooperative Society and since it does not fall within the ambit of the definition of state as defined under article 12 of the Constitution of India, this petition is liable to be dismissed as not maintainable. ( 17 ) IN support of his contention, Mr. Raghvendra Singh, learned counsel for the opposite parties submitted further that the petitioner was not a government servant as his service was governed by the Standing Orders framed by the Society under industrial Employees (Standing Orders)Act, 1947. ( 18 ) AS the provisions of Article 226 of the Constitution are vide enough to cover a public interest, the element of public interest requires to regulate conditions of service of those employees whose category is separate from the government employees. Such employees are entitled to the State protection. The State has pervasive control over the Morna sugar Mills and its employees. The General Manager is always an I. A. S. and P. C. S. officer of the State Government. Such employees are entitled to the State protection. The State has pervasive control over the Morna sugar Mills and its employees. The General Manager is always an I. A. S. and P. C. S. officer of the State Government. His acts would always be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. The service conditions of the employees are found in the Standing Orders framed under the Societies Act. The Supreme Court has laid down in, "u. P. State Cooperative Land Development bank Limited vs Chandra Bhan Dubey and others (1999)1 SCC 741 " that if a society is an instrumentality of the state or an authority as mentioned in Article 12 of the constitution and it is controlled by the State, a writ petition filed by its dismissed employees to challenge the orders of dismissal is maintainable. The High Court exercises vast powers under Article 226 of the Constitution and the Supreme court has elaborated such powers in para 27 of the above judgment in the following words : "article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any government. Under clause (1) of Article 367, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India. "person" under Section 2 (42) of the General clauses Act shall include any company or association or body of individuals, whether incorporated or not. The constitution is not a statute. It is a fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. When any citizen or person is wronged, the High Court will step in to protect him be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226. " ( 19 ) IT is abundantly clear from the above that even a cooperative society is subject to the jurisdiction of Article 226 of the Constitution of India and in the case in hand, it is established from the record that the Morna Sugar Mills is a cooperative Sugar Mill run by a society with effective control of the Government. The General Manager, as mentioned above, is always an I. A. S. or P. C. S. officer and not only this, almost all policy decisions including the proposal for appointments are approved by the District Magistrate, Muzaffarnagar. This kind of supervisory control speaks volumes in support of Dr. L. P. Mishras contention that Morna Sugar Mills is an instrumentality of the State being in pervasive control of the Government. A Division Bench of this Court clearly held in, "jagveer singh versus The Chairman, Cooperative Textile, Mills ltd. Shahkari Nagar, Bulandshahr and others [ (1999) 2 uplbec 1251 ]" that a cooperative society is state. L. P. Mishras contention that Morna Sugar Mills is an instrumentality of the State being in pervasive control of the Government. A Division Bench of this Court clearly held in, "jagveer singh versus The Chairman, Cooperative Textile, Mills ltd. Shahkari Nagar, Bulandshahr and others [ (1999) 2 uplbec 1251 ]" that a cooperative society is state. In this decision also, this Court laid down the same principle to test the status of a cooperative society and if the test of deep and pervasive State control is applied to the respondent society, it would qualify itself to be characterized as an instrumentality or agency of State regard being had to public nature of its function. The same Division Bench which pronounced the aforesaid verdict held in another decision, "narendra Singh versus State of U. P. and others [ (1999)2 UPLBEC 995 ]" that a cooperative society under the supervisory control of the government is state within the meaning of the term state as defined under Art. 12 of the Constitution of India and a termination order of an employee of the society can without any hesitation be challenged in the High Court. ( 20 ) BESIDES the above decisions, there is a Full Court decision of this Court, reported in [2003 (21)LCD 69]. In this case, titled as Vijay Behari Srivastava versus U. P. Postal Primary cooperative Bank Limited and another, this Court laid down certain test and arrived at a conclusion that a writ petition praying for a writ in the nature of certiorari will lie against a cooperative society if such society has ingredient of an "authority" within the meaning of Art. 226 of the constitution. These tests and guidelines, as derived from various decisions of the Supreme Court, may precisely be given as follows : 1. The constitution of the Managing body/committee constitutes the functionaries of the Government; 2. There is an existence of deep and pervasive control of the management and policies of the Co-operative society by the Government; 3. The function of the Co-operative Society is of public importance and closely related to the governmental functions; 4. The financial control is by the Government or it provides financial aid controlling its affairs; 5. The violation of statutory rules applicable to the society in regard to the service matters of its employees; and 6. Statutory violations or non-compliance of it by an authority under the Act. The financial control is by the Government or it provides financial aid controlling its affairs; 5. The violation of statutory rules applicable to the society in regard to the service matters of its employees; and 6. Statutory violations or non-compliance of it by an authority under the Act. ( 21 ) KEEPING in view the touch-stone of the above tests/guidelines, it may be observed that there is deep and pervasive control of the Government over the Morna Sugar Mills society as it is always managed by an officer of the government and the District Magistrate, Muzaffarnagar being chairman of the Management Committee is the supervisory authority of the said Sugar Mills. The State Government has authority to nominate six members of the Management committee, who shall hold the office at the discretion of the government. The Government itself is the Member of the samiti and it has 1/4th share in the capital investment of Rs. 8 crores. The Government also allots financial aid to the mill every year, although details of such aid are not available. Certainly, it holds an important place in the management of the mills. As said above, the Government has power to nominate 10 members in the General Body and it can also exercise its power to change these members. In the principal Samiti, the district Magistrate, Muzaffarnagar is the ex officio Chairman and the Government is empowered to nominate six more members of the Management Samiti. These members can be replaced by the Government at its discretion. As is specifically provided in Rule 65 of the Bye-Laws, the District Magistrate, muzaffarnagar will also be administrative Director of the Mill and he will supervise and control the day to day administrative and financial functions of the Mill so as to protect the Government interest. For better understanding, this rule may be quoted as below : (Vernacular portion omitted)In addition to the above, Sub-rule (M) of Rule 66 further clarifies the extent of the Government control over the mills. It may be quoted as below : (Vernacular portion omitted) ( 22 ) BESIDES, the Government has a major role to perform even in the matter of appointments of the officers, staff, temporary and permanent as the Selection Committee comprises of the General Manager of the mill, the Managing director of the Sugar Federation and the District Magistrate, muzaffarnagar. It may be quoted as below : (Vernacular portion omitted) ( 22 ) BESIDES, the Government has a major role to perform even in the matter of appointments of the officers, staff, temporary and permanent as the Selection Committee comprises of the General Manager of the mill, the Managing director of the Sugar Federation and the District Magistrate, muzaffarnagar. Further, the Government has authority to nominate two members in the Selection Committee. Obviously thus, the Government has full and effective control in all the financial and administrative matters including the appointments of the staff in the mill. ( 23 ) THE function of the cooperative society is of public importance. The federation of the Sugar Mills is also the controlling authority of the said Sugar Mills. The Managing director of the U. P. Cooperative Sugar Factories Federation is always a Senior I. A. S. officer. There are statutory rules to govern the service conditions of the Sugar Mills, known as standing Orders. ( 24 ) KEEPING all these features in view, it is held that the cooperative society of Morna Sugar Mills is an authority to which the provisions of Art. 226 of the Constitution are attracted and therefore, this petition is fully maintainable. ( 25 ) NOW coming to the merit of the petitioners case, it may be observed at the very outset that the enquiry officer Shri B. N. Gupta as well as the General Manager of the Sugar Mills in their report and impugned dismissal order have proceeded on wrong assumption of the petitioner being guilty. Shri B. N. Gupta, who was appointed second enquiry officer long after the first enquiry officer Shri S. K. Tayal exonerated the petitioner of the charges levelled against him, straightway proceeded to ask him to enter upon his defence and lead evidence in his defence. Although, Shri B. N. Gupta served a fresh charge-sheet upon the petitioner but instead of asking the management or a presenting officer representing the management to lead their evidence in support of the charge called upon the petitioner to submit whatsoever he has to say in support of his defence case. A perusal of the report reveals that the charge-sheet was served upon the petitioner on 6. 12. 1999 and he was asked to submit his version on 14. 12. 1999. A perusal of the report reveals that the charge-sheet was served upon the petitioner on 6. 12. 1999 and he was asked to submit his version on 14. 12. 1999. The petitioner requested for adjournment and also for deferment of the proceedings until decision in his writ petition pending before the High Court but his request was turned down under the instructions of the general Manager. The enquiry officer did not exercise his discretion to defer the proceedings as he was instructed by the general Manager to complete the enquiry as early as possible. The petitioner was then called upon as a last measure to appear before the enquiry officer on 24. 1. 2000 to lead his defence case. The petitioners contention is that he had not made any statement but whatever he orally submitted to the enquiry officer, it was regarded to be his statement and when he demanded a copy of the said statement, the enquiry officer declined his request. When the veracity of a fact was denied, it was obligatory upon the enquiry officer to furnish a copy of the purported statement of the petitioner but he failed to do so and thus violated the principles of natural justice by withholding a copy of the statement which is said to have been made by the petitioner. The Court has perused the enquiry file and found the statement of the petitioner recorded in question and answer form. No witness was examined in support of the charge; instead some legal Assistant (name not decipherable)submitted typed statement on 25. 1. 2000 , i. e. a day after the petitioner was interrogated on Jan 24, 2000 and whatever the legal Assistant submitted in his written statement was taken to be as gospel truth without affording an opportunity to the petitioner to cross-examine the said legal Assistant. The procedure adopted by the enquiry officer was absolutely contrary to the settled norms of holding an enquiry. In the first instance, the legal Assistant should have been examined by the enquiry officer and the petitioner or his representative thereafter asked to cross-examine the said Assistant but this was not done. The procedure adopted by the enquiry officer was absolutely contrary to the settled norms of holding an enquiry. In the first instance, the legal Assistant should have been examined by the enquiry officer and the petitioner or his representative thereafter asked to cross-examine the said Assistant but this was not done. He was asked to submit the written statement a day after the petitioner was interrogated and from perusal of the statement of Shri Ashok Kumar Sharma, it appears that he was interrogated as if he was an accused and under an obligation to answer the questions put to him by the enquiry officer. Be that as it may, the petitioner in all fairness replied to the questions put to him by the enquiry officer but did not lead his defence in support of his defence version. As per the normal procedure, the enquiry should have been closed after the petitioner was heard but it was kept open and as is apparent from the record, a day after i. e. 25. 1. 2000 surreptitiously without disclosing to the petitioner a legal assistant of the Sugar Mills had been asked to submit his written statement. The said written statement has been relied upon as a gospel truth in support of the charge but quite contrary to the settled principles of justice, neither the petitioner was informed about this nor a copy thereof was handed over to him and as said above, the enquiry officer did not consider it necessary to ask the petitioner to cross-examine the said legal Assistant. In view of this illegal and prejudicial procedure followed by the enquiry officer, the enquiry report is vitiated as the very principles of natural justice have been violated. ( 26 ) NO witness was examined by the enquiry officer in support of the charge that it was the petitioner who committed forgery in the report of the Selection Committee by adding words, "steno Hetu" (for the post of Stenographer ). None has seen him doing so. He was not the custodian of the file. The committees report was submitted to the General Manager who, in turn, forwarded it to the Chairman, namely, the District magistrate, Muzaffarnagar and it was only thereafter that it was kept on record. None has seen him doing so. He was not the custodian of the file. The committees report was submitted to the General Manager who, in turn, forwarded it to the Chairman, namely, the District magistrate, Muzaffarnagar and it was only thereafter that it was kept on record. The first enquiry officer Shri S. K. Tayal had recorded a categorical finding that the words, "steno Hetu" were typed by the same typewriter by which the report was prepared. He was, however, of the opinion that brackets were perhaps added by some other typewriter and the same line was toed by Shri B. N. Gupta but there is not an iota of record of the enquiry file to convince this Court on the point that it was the petitioner who has done this bracket-mischief. From the bare eyes, there appears to be no forgery or manipulation in the committees report which has been carefully scanned by this court. No presumption can be drawn that mischief would be deemed to have been committed by the petitioner in the alleged interpolations merely because he was the beneficiary. Soon after the appointment letter was issued to him asking him to join on the post of Typist, he lodged his protest and received the appointment letter by making an endorsement of the protest in the register in which his signatures for receipt of the appointment letter were obtained. Surprisingly, the said register has not been produced either before the enquiry officer or before this Court. Some papers including the said register were reported by the administration to be missing. There was nothing on record to justify the allegation that the petitioner was instrumental in the papers and the register being lost. Since he was not a custodian of the said register or papers, he cannot be blamed in absence of a positive piece of evidence to the effect that he played an active role in removing the papers and register from the rightful custody. All such important papers are always kept by the Superintendent of the office and the Superintendent has not appeared before the enquiry officer to say that either the petitioner was in one way or the other connected with the custody of those papers or he got them removed by one device or the other. Thus, the charge that he was holding the custody of important files including his character roll etc. Thus, the charge that he was holding the custody of important files including his character roll etc. was not proved by any convincing, oral or documentary evidence. Some reports of Shri Ramesh Singh rathore, Shri T. N. Singh and Shri Ravi Shanker alleged to have been submitted in the year 1989 were relied upon but the petitioner was not served copies thereof nor an opportunity to meet any such reports submitted surreptitiously by the aforesaid officers has been afforded to him. How then, it can be said that he was guilty of getting the relevant records misplaced. ( 27 ) THE apex Court held in, Kashi Nath Dikshita versus union of India and others (1986) 3 SCC 229 " that refusal to supply copies of statements of witnesses recorded ex parte at pre-enquiry stage and documents relied upon by the department to establish charges before commencement of enquiry amounts to violation of principles of natural justice embodied in Art. 311 (2) of the Constitution. ( 28 ) THE enquiry officer, in the case in hand, did not disclose any valid reason as to why he relied upon the confidential reports of some officers without furnishing copies thereof to the petitioner. The petitioner was not given an opportunity to inspect such reports or notes or adverse observations made against him. ( 29 ) THE Supreme Court has also reiterated the decision of the above citation in, " State of U. P. versus Shatrughan Lal and another [ (1998) 3 UPLBEC 2019]". As held by the apex Court, an opportunity has to be an effective opportunity and not a mere pretence. If copies of the documents relied upon by the enquiry officer have not been furnished to the delinquent official, it cannot be said to be an effective opportunity. ( 30 ) A Division Bench of this Court in, "rajendra Bahadur singh versus U. P. Agro Industrial Corporation Limited, lucknow and others 1993 S. C. D. 656" held that if a delinquent official has neither been informed about an internal report nor associated with it in any manner whatsoever nor the author of the report was examined - certainly in such cases, principle of natural justice stands violated. ( 31 ) ONE of the charges levelled against the petitioner was that he got his appointment for the Stenographer issued by the incharge General Manager during the leave of the General manager, Shri D. C. Shukla and it was said that he misled the incharge General Manager and succeeded in obtaining the appointment letter for the post of Stenographer by exercising his influence. ( 32 ) IN this context, it is noteworthy that neither the incharge General Manager Shri Kunwar Ram Kumar Singh, who issued the appointment letter was examined by the enquiry officer nor Shri D. C. Shukla who was the General Manager at the relevant time in the year 1987 and who endorsed the appointment letter subsequently and assigned the petitioner the duty of Stenographer and also paid his salary including the arrears thereof, was examined by the enquiry officer. It is surprising to note that the Enquiry Officer put aside all norms of settled procedure regarding evidence to be led in support of the charges and in defence thereof; he simply proceeded on assumption that whatever has been said by the legal Assistant in his written statement was absolutely true. Such an approach was wrong, illegal and contrary to the settled principles of justice. The officer certainly lacked capability of an Enquiry officer. The observations and the findings of the enquiry officer are based on surmises and conjectures which clearly prove arbitrariness on the part of Shri Gupta and therefore, it deserves to be rejected. ( 33 ) FURTHER, the enquiry officer ignored the very important piece of evidence, namely a letter written by Shri Bhuvneshwar singh, I. A. S. who was the General Manager of the Sugar Mills at the time of the petitioner being appointed as Stenographer. It may be relevant to note that the petitioner was working as a clerk in the Sugar Mills and when the post of Stenographer was advertised in the Daily Newspaper of November 2, 1984, he moved an application to Shri Bhuvneshwar Singh, General manager praying for an opportunity being given to him to work as Stenographer. His application was allowed by the General manager and he was appointed as Stenographer with effect from 15. 9. 1984. The General Manager passed the following order (Annexure-1) on the petitioners application. "put up at the time of interview. Meanwhile, he will be working as ST. His application was allowed by the General manager and he was appointed as Stenographer with effect from 15. 9. 1984. The General Manager passed the following order (Annexure-1) on the petitioners application. "put up at the time of interview. Meanwhile, he will be working as ST. to the G. M. office on monthly wages of rs. 460/- (four hundred and sixty only)" ( 34 ) IN pursuance of the said order of the General Manager, the petitioner submitted his joining report on 15. 9. 1984 itself (Annexure-2 ). The selection for the post of Typist -cum-Clerk was conducted on 19. 2. 1985. The selection was conducted by a Committee of five officers and it was approved by the Chairman. Shri-Bhuvneshwar Singh, however, appointed the petitioner as Typist in the beginning but assigned him the duty of Stenographer as is evident from the order dated 8. 4. 1985. Shri Bhuvneshwar Singh has explained the anomalous situation in his reply letter dated 25. 9. 1998 (Annexure-17 ). It would be relevant to note that Shri K. M. Dubey wrote a letter (Annexure-16) to Bhuvneshwar Singh, the then Vice-Chairman, Dehradun Mussoorrie Vikas Pradhikaran, dehradun and enquired from him, as suggested by the first enquiry officer Shri S. K. Tayal, as to whether the petitioner was appointed after selection as Stenographer or Typist? Shri bhuvneshwar Singh confirmed that the petitioner was appointed as Stenographer on the basis of the recommendation of the Selection Committee as approved by the then District magistrate/chairman. He, however, asked the General manager to evaluate himself the circumstances attending on the appointment. Shri S. K. Tayal in his report also recorded a categorical finding that although Shri Sharma was selected as stenographer but perhaps on account of a mistake apparent on the face of the appointment letter, Shri Sharmas designation was recorded as Typist. It is significant to note that the petitioner after lodging his protest did not easily succeed in obtaining his appointment on the post of Stenographer. As recited earlier, the petitioner moved his first representation on 26. 7. 1986 for issuance of formal orders regarding his appointment as Stenographer, although he had already been assigned the job of Stenographer by the General Manager on 19. 4. 1985. His representation, however, kept pending. Thereafter, he moved several other representations on 31. 8. 1986, 20. 9. 1986 and 24. 11. 1986. 7. 1986 for issuance of formal orders regarding his appointment as Stenographer, although he had already been assigned the job of Stenographer by the General Manager on 19. 4. 1985. His representation, however, kept pending. Thereafter, he moved several other representations on 31. 8. 1986, 20. 9. 1986 and 24. 11. 1986. During this period, several officers were appointed and relieved as General manager. It was on 30. 1. 1987 that the petitioners representation was granted by the General Manager and he was issued a formal appointment letter for the post of stenographer and the necessary orders were passed after a detailed enquiry and after obtaining report from the concerned officials including a report of Administrative Officer dated 6. 1. 1987, the report of the Office Superintendent, report of the head Clerk and report dated 23. 6. 1986 of the Factory Manager. Copies of all these reports of these officers are on record. From perusal of all the reports, it appears that there was no ambiguity on the point of the petitioner having been selected as Stenographer. The issue was closed and concluded. However, some secret enquiries were conducted in the year 1989 when complaints were made by some unscrupulous element but every time, it was held that the petitioner was appointed as Stenographer and this is also abundantly clear from the report of the Selection Committee on record which has been carefully perused by this Court. It was all of a sudden that in the year 1997, i. e. more than 10 years after the petitioner was appointed as Stenographer that the General manager opened this chapter again and cancelled the petitioners appointment as Stenographer without any show cause notice and appointed him as Typist. The said order was, however, intervened by this Court and a stay order was granted in writ petition No. 4944 (S/s) of 1997. However, since a liberty was granted to the General Manager to proceed against the petitioner in accordance with rules, the General manager placed the petitioner under suspension and ordered for an enquiry. The General Manager was not satisfied with the enquiry report dated 7. 9. 1998 submitted by the enquiry officer shri S. K. Tayal, who had given a clean chit to the petitioner -exonerating him from the charge of forgery or manipulation in the report of the Selection Committee. The General Manager was not satisfied with the enquiry report dated 7. 9. 1998 submitted by the enquiry officer shri S. K. Tayal, who had given a clean chit to the petitioner -exonerating him from the charge of forgery or manipulation in the report of the Selection Committee. Not only this, but Shri tayal recorded a categorical finding that the petitioner was duly selected and appointed as Stenographer. The General Manager shri K. M. Dubey agreed with the suggestion of the enquiry officer for verifying the reality about the petitioners selection from Bhuvneshwar Singh, I. A. S. who was the General Manager of the Morna Sugar Mills at the relevant time of the petitioner being selected and he, therefore, sent a letter to Shri bhuvneshwar Singh asking for a clarification and Bhuvneshwar singh without any loss of time replied the letter very promptly and informed the General Manager by his letter dated 25. 9. 1998 that the petitioner was appointed as Stenographer and his selection was duly approved by the District Magistrate, muzaffarnagar. However, in the meantime, an F. I. R. was lodged against the petitioner but after investigation, the police submitted a final report absolving him from the allegations of forgery, manufacturing of false documents and manipulations in the records. Meanwhile, there was change of guard and dr. S. P. S. Sang took over as the General Manager of the Sugar mills and he too proceeded on the assumption that the petitioner was the beneficiary of some manipulations and alterations in the records and he therefore, issued orders for a fresh enquiry in the matter vide his order dated 15/16. 11. 1999. ( 35 ) THE report of the Enquiry Officer suffers from serious irregularities. The first such irregularity is that all the findings recorded by Shri B. N. Gupta are based on presumptions and assumptions. A perusal of the report would reveal that the enquiry officer relied upon some two page confidential note of shri N. C. Chaturvedi who was at some point of time General manager of this Mill and since he recorded some adverse observation about the petitioner having done some interpolations, the enquiry officer believed that report, a copy whereof was neither supplied to the petitioner for his explanation or for an opportunity to meet such said observation. Secondly, the enquiry officer even went to the extent of disbelieving the petitioners certificate which he had obtained regarding his training as Stenographer from "annapurna Commercial College, Daliganj, Lucknow". As a matter of fact, such an imaginary observation about the certificate of shorthand knowledge being fake was meaningless and mis-conceived as the petitioner was not called upon to prove that he knew the art of shorthand writing; and the enquiry officer forgot the fact that the petitioner was appointed as a Stenographer on ad hoc basis by Shri Bhuvneshwar Singh on 15. 9. 1984 and he worked on the said post for quite some time before the selection was conducted. The enquiry officer has not recorded any finding to the effect that the petitioner was ignorant of the shorthand typing. The petitioner cannot be blamed if the answer sheets submitted by him and other competitors were lost. As repeatedly said above, neither the answer sheets were in possession of the petitioner nor in his office. ( 36 ) THIRDLY, the finding recorded by the enquiry officer that the petitioner exerted his influence over Shri Bhuvneshwar singh and Shri Raj Kumar Singh is totally unfounded as there is no basis of such influence having been exercised by the petitioner. The enquiry officer has neither relied upon any concrete material to base that finding of his nor any witness was examined in support of such observation. In the absence of substantive material to provide a logical basis, it may be held that the enquiry officer acted in a prejudicial way without any evidence and in arbitrary manner. By making such observations, the enquiry officer who was the Chief Accountant in the Sugar Mills and must have served as subordinate to the aforesaid two General Managers has exposed himself by making adverse strictures and blaming the two General managers with nepotism. The enquiry officer appears to have expressed himself against the two General Managers, might be on account of his personal prejudices. Juniors also wreak vengeance against their seniors on account of being snubbed by the latters at one point of time or the other. The Chief accountant who lacked competence to be an impartial Enquiry officer, suffered from the same prejudicial animosity. ( 37 ) LEARNED counsel for the opposite parties contended with reference to a decision in, "indian Railway Construction co. The Chief accountant who lacked competence to be an impartial Enquiry officer, suffered from the same prejudicial animosity. ( 37 ) LEARNED counsel for the opposite parties contended with reference to a decision in, "indian Railway Construction co. Ltd. versus Ajay Kumar (2003) 4 SCC 579 " that a court should not sit as an appellate authority so as to substitute its own view for that of the disciplinary authority. This citation is not attracted to the facts of the present case as in that case, the delinquent union worker assaulted a senior officer and created a scene of terror. Use of force/muscle power for union activities was strongly deprecated but there is nothing of similar kind in the case in hand. Here, it is proved from record as discussed above that the enquiry officer and the disciplinary authority based their findings on surmises and conjectures. As a matter of fact, it was a case of no evidence against the petitioner to hold him guilty of the charges of forgery, alteration and mis-conduct. Both the authorities have forgotten that after initial error in the matter of his appointment, decision was not taken in his favour within a month or two but it took 1. years for all the authorities of those times to scrutinize the records and enquire into the entire episode and the decision was taken with well deliberations. ( 38 ) THE citations, "state of U. P. versus Harendra Arora and another AIR 2001 SC 2319 " and State of U. P. and others versus Ramesh Chandra Mangalik (2002) 3 SCC 443 " are of no help to the opposite parties as in this case, it is not only the fault of enquiry report which has caused prejudice to the petitioner but it is also proved from the record that there was no material for the enquiry officer or the disciplinary authority to base their findings nor the relevant documents/ reports were furnished to the petitioner and it had seriously caused prejudice to him as he was not in a position to defend himself against the observations made in the reports of the senior officers nor he could lead any defence evidence to resist and rebut such reports. What is significant to note is that the enquiry officer surreptitiously relied upon such reports and held the petitioner guilty behind his back without giving an opportunity to him to meet them. ( 39 ) THE findings of the enquiry officer regarding misplacement of the petitioners character roll is also not sustainable as he has relied upon the report of Shri Ashok kumar Singh, Dispatch Clerk and a fact finding officer Shri R. S. Rathore but these two officials were neither examined in support of the charge nor the petitioner was given an opportunity to cross-examine them. ( 40 ) IN view of the above discussions, I am of the decisive opinion that the dismissal order passed by Shri S. P. S. Sang is harsh as being not based on any concrete material. The impugned dismissal order issued by the General Manager therefore cannot be sustained. To sum up, the report of the enquiry officer and the consequential dismissal order suffer from the following vices :-1. The enquiry officer followed a wrong procedure by asking straightway the petitioner to prove his innocence by way of entering upon his defence version. 2. The enquiry officer did not examine any witness not even those whose reports were relied upon by him and referred to in his report. Neither copies of such reports were furnished to the petitioner nor he was given an opportunity of cross-examining the author of such reports. 3. The legal Assistant of the Sugar Mills was surreptiously asked to submit his written statement after the petitioner had been interrogated. Neither the said legal Assistant was examined in presence of the petitioner nor the latter was given an opportunity to confront him by way of cross-examination. 4. There was not an iota of evidence to prove that the petitioner was instrumental in manipulation or alteration of any record or loss of any paper or register. 5. The enquiry officer recorded imaginary reasons to disbelieve the relevant letter of Shri Bhuvneshwar Singh, I. A. S. and charged him behind his back without any basis of having extended favour to the petitioner. 6. The enquiry officer ignored without any cogent reason the written reports of Administrative Officer (Annexure-8), Office superintendent (page 56), Head Clerk (pages 57 and 58) and factory Manager (dated 23. 6. 1986) which had clearly proved that the petitioner was selected and appointed as stenographer. 7. 6. The enquiry officer ignored without any cogent reason the written reports of Administrative Officer (Annexure-8), Office superintendent (page 56), Head Clerk (pages 57 and 58) and factory Manager (dated 23. 6. 1986) which had clearly proved that the petitioner was selected and appointed as stenographer. 7. It was merely an assumption and presumption of the enquiry officer to hold that the petitioner was instrumental for alteration and forgery in the report of the Selection Committee. There was not an iota of evidence to support that finding. 8. Except interrogation of the petitioner, all proceedings were held and conducted by the enquiry officer behind his back. 9. The enquiry proceedings suffered from bias and prejudice as there was no transparency in respect of conduct of proceedings. 10. By reopening the matter, the General Manager and enquiry officer interfered with finality attached to the controversy in the year 1988. 11. The action of the enquiry officer shifting the burden of proving innocence upon the petitioner suffers from grievous perversity. ( 41 ) IF taking into consideration the observations of the supreme Court made in the decision of Ramesh Chandra mangaliks case (supra), the present case is scrutinized, the outcome would be that consequent to withholding of the reports of the officers in past, the petitioner suffered a consequential prejudice as non-supply of such documents violated the principles of natural justice. ( 42 ) THE long and short of the above discussions is that the enquiry report and the impugned dismissal order of the petitioner grievously suffer from mala fides, perversity and arbitrariness and therefore, the report as well as the impugned dismissal order deserves to be set aside. ( 43 ) ACCORDINGLY, the order dated 15/16. 11. 1999 (Annexure-19)is quashed. The orders No. 1814 and 1815 - both dated 8. 9. 1997, as contained in Annexures 11 and 12 respectively and 8/9. 2. 2000 (Annexure-27) are also quashed. A writ of certiorari is issued accordingly. Further, a writ of mandamus is issued commanding the opposite parties to reinstate the petitioner with immediate effect and with all consequential benefits. . .