Judgment ( 1. ) THE petitioner was appointed as a Seed Certification Inspector on 1-7-1984 and eventually was regularized in the said post on 2-6-1986. The respondent No. 1, M. P. State Seed Certification Agency, a society registered under the M. P. Registrikaran Adhiniyam, 1973, is a state under Article 12 of the constitution of India being fully controlled by the State of M. P. It is pleaded that m. P. Civil Services (Classification, Control and Appeal) Rules, 1996 (in short 1966 Rules) are applicable to the petitioner. The petitioner while working under the respondent No. 1, a disciplinary proceeding was initiated against him by the respondents under the provisions of 1966 Rules on the assertion that the said Rules are applicable to the petitioner. A charge- sheet dated 24-10-89 was served on the petitioner on 6-11-1989. A copy of the said charge-sheet has been brought on record as Annexure P-2. The petitioner submitted his reply to the charge-sheet on 15-11-1989 vide Annexure P-3. ( 2. ) ACCORDING to the petitioner, the respondent No. 2 appointed respondent No. 4 as the Inquiry Officer to enquire into the charges. Charge-sheet contained eight charges. Some of the charges were relatable with the behaviour and conduct of the petitioner while he was the Vice-President and president of the M. P. Seed Certification Agency Employees Union. ( 3. ) IT is contended that the charge-sheet was not accompanied with the list of witnesses and list of documents as mandatory as per the provisions of 1966 rules. The list of witnesses was not supplied to him in spite of demand whereas the some of the documents were shown to him on the date of hearing itself. First hearing took place on 20-3-90 and thereafter the petitioner prayed for adjournment through telegram on account of financial stringency and refusal on the part of the authorities to release tour advance. The petitioner had written letter dated 2-3-90 as contained in Annexure P-5 raising certain legal issues and technical objections. On 9-4-90 he appeared before the Inquiry Officer and prayed for decision on his objection. He also requested for grant of copy of the documents. The Inquiry Officer recorded his statement in writing and fixed the date of hearing to 15-5-90 and 31-5-90 but nothing happened on the said dates. On 9-4-90 he appeared before the Inquiry Officer and prayed for decision on his objection. He also requested for grant of copy of the documents. The Inquiry Officer recorded his statement in writing and fixed the date of hearing to 15-5-90 and 31-5-90 but nothing happened on the said dates. As set forth, inquiry was fixed on 18th and 19th July, 90 and on the said dates the inquiry Officer insisted upon recording statement of the petitioner. The petitioner raised objection that his statement could not be recorded until statement on behalf of the department was recorded. To the utter prejudice of the petitioner, his statement was recorded on 18th and 19th July, 1990. The matter was fixed to 16-8-90. In spite of presence of the petitioner at Khandwa, hearing was cancelled and the matter was adjourned to 5-10-90. Rest of the statement of the petitioner was recorded on 6-10-90 as per Annexure P-8. The petitioner was examined with record to own statement as contained in Annexure p-8. It is put forth that a novel procedure was adopted by the Inquiry Officer inasmuch as when no charge was proved against the petitioner, the petitioner was required to give his statement. On the next date of hearing, i. e. , 6-11-90 no hearing could took place because of curfew at Jabalpur. The inquiry was adjourned to 21-11-90 on which date of the petitioner could not appear due to his illness. He intimated the authorities by telegram and submitted the medical certificate subsequently. The last date of hearing was fixed to 27-12-90. The respondent No. 4 had already recorded the statement of the petitioner and taking advantage of the same he went to Bhopal on 3-12-90 and recorded the statements of four witnesses on behalf of the department. The petitioner was not informed about the said statements and also not intimated about the date of hearing. It is put forth that one of the witnesses, namely, Denis Nathanial was absolutely persona non grata with the petitioner as the petitioner had opposed his appointment as the Administrative Officer. He had filed M. P. No. 3246/89 before this Court and in the said case the petitioner among others had intervened in the matter. The said petition was returned for filing in the proper forum. He had filed M. P. No. 3246/89 before this Court and in the said case the petitioner among others had intervened in the matter. The said petition was returned for filing in the proper forum. One witness, Smt. Madhurima Dubey who wanted to stay at Bhopal and was dependent on the respondent No. 2 was commanded to give statement against the petitioner. Other witnesses were also motivated against the petitioner either to get the benefit from the respondent Nos. 1 and 2 or due to fear. It is contended that on one of the occasion when the witnesses were examined, the petitioner was present. He had no notice of the same. He was given information about these statements on 27-12-90. He had requested orally for production of these statements. He had also prayed for opportunity to examine his defence witnesses but his prayer was refused on the ground that the inquiry was to be completed within one year and the period was going to expire. Thus, in essence the petitioner was not afforded adequate opportunity to defend himself. When the matter stood thus, he received a notice to show cause dated 28-1-91 to the effect why he should not be imposed with the penalty of removal. The petitioner submitted his reply on 7-2-91 as per Annexure P-12 and thereafter order of removal was served on him on 11 -2-91. ( 4. ) IT is urged in the petition that he had demanded the list of witnesses from the respondents as per memo dated 1-6-90 but the same was not supplied to him. The petitioner was not granted opportunity to examine witnesses who had deposed against him. It is put forth that the witnesses were forced and compelled to give evidence. The petitioner stated these facts in appeal presented to the Chairman of the Agency but the same has been dismissed concurring with the order passed by the Disciplinary Authority without dealing with the grounds urged by the petitioner. ( 5. ) IT is submitted in the petition that inquiry conducted by the department was a mockery of justice and respondents were bent upon to remove the petitioner and accordingly the witnesses were examined behind his back and he was not afforded any opportunity to examine them. ( 5. ) IT is submitted in the petition that inquiry conducted by the department was a mockery of justice and respondents were bent upon to remove the petitioner and accordingly the witnesses were examined behind his back and he was not afforded any opportunity to examine them. It is also put forth that the persons who have been examined were influenced by the respondents and, in fact, commanded to give evidence against the petitioner. It is put forth that though the Board has followed the 1966 Rules but the procedure under Rule 14 of the said Rules have not been followed and the inquiry conducted is, in actuality, is an apology of inquiry inasmuch as no documents which were demanded, were supplied to the petitioner. It is contended that the petitioner was not allowed to fully inspect the documents as a consequence of which serious prejudice has been caused. It is submitted that four witnesses were examined at Bhopal in the absence of the petitioner which shows the real attitude of the respondents and how they have deviated from the doctrine of audi alteram partem. The petitioner was told to produce the witnesses after the prosecution case was over but as the witnesses belonged to the Agency and as such they should be summoned, a request was made to that effect but the request was declined. It is contended that due to petitioners union activities authorities were against him and they were bent upon to remove him and hence, the inquiry was conducted as an eye wash. With these assertions prayer has been made to call for the records of the Disciplinary Authority and issue of a writ of certiorari for quashment of the order of removal and affirmation thereof as contained in annexures P-13 and P-17 and grant him other consequential benefits. ( 6. ) A counter affidavit has been filed by the answering respondents contending, inter alia, that in the departmental inquiry serious charges have been found to be proved against the petitioner and hence, order of removal, annexure P-13 has been passed. It is put forth that departmental inquiry has been conducted as per the provisions of Rule 14 of the 1966 Rules which have been adopted by the Board in its resolution dated 29-1-1990. It is put forth that departmental inquiry has been conducted as per the provisions of Rule 14 of the 1966 Rules which have been adopted by the Board in its resolution dated 29-1-1990. It is set forth that these rules were applicable to the Corporation employees even prior to resolution dated 29-1-1990 during transitory period. It is the stand in the return that the petitioner had been given ample and adequate opportunity to defend himself and reply filed by him was duly considered. It is submitted that along with the charge-sheet statement of allegations, list of witness and list of documents were supplied to the petitioner. With regard to grant of opportunity it has been stated in Paragraph 10 as under:- "10. It is submitted that out of eight charges, six charges were found proved on the basis of documents available on record. For the charge No. 6 three witnesses were examined whereas for charge no. 7 only one witness was examined. There had always been prior communication of the date of inquiry to the petitioner but he deliberately remained absent on the date of inquiry. He was furnished with the statement of the witnesses and was asked to cross-examine them. This fact is obvious from Annexure P-19 filed by the petitioner himself. Copy of the note-sheet is being filed to show that the petitioner himself did not avail the opportunity to cross-examine the witnesses. Copy of the note-sheet is annexed as annexure R-l. " ( 7. ) IT is the stand of the respondents that the petitioner was given due opportunity to put forth his stand in the proceeding but he chose not to appear despite notice. It is urged that out of eight charges, six charges were found to be proved on the basis of the documents available on record. Allegation of bias and prejudice has been disputed and a separate affidavit denying the said allegations has been filed by the concerned Ex. Managing Director. It is also contended that the punishment inflicted on the petitioner is not disproportionate. ( 8. ) I have heard Mr. Rajendra Tiwari, learned Senior Counsel along with Mr. Uddyan Tiwari for the petitioner and Mr. Mrigendra Singh, learned counsel for the respondents. ( 9. ) IT is submitted by Mr. Managing Director. It is also contended that the punishment inflicted on the petitioner is not disproportionate. ( 8. ) I have heard Mr. Rajendra Tiwari, learned Senior Counsel along with Mr. Uddyan Tiwari for the petitioner and Mr. Mrigendra Singh, learned counsel for the respondents. ( 9. ) IT is submitted by Mr. Tiwari that the inquiry has been held in a most peculiar manner in the case at hand inasmuch as the petitioner was examined first and further certain witnesses were examined at Bhopal without due notice to the petitioner and further the documents applied for were not given and the entire inquiry is in a way can be put in the realm of farce. Learned Senior counsel has submitted that the inquiry had been conducted behind the back of the petitioner and opportunity was refused despite the illness of the petitioner. It is also submitted by him that the manner in which the inquiry was conducted, there cannot be any trace of doubt that prejudice has been caused and the said fact can be established beyond shadow of doubt from the counter affidavit itself. Learned Senior Counsel has laid emphasis upon admission made in Paragraph eight of the return. It is put forth by him that procedural illegality in conducting the inquiry has caused enormous prejudice and the same is evident from inquiry report and procedure adopted by the Inquiry Officer. To bolster his submissions he has commended me to the decisions rendered in the case of Ramshakal yadav Vs. Chief Security Officer, Railway Protection Force, Bombay, AIR 1967 mp 91 , Kashinath Dikshita Vs. Union of India and others, AIR 1986 SC 2118 , rajkishore Pandey Vs. Rewa-Sidhi Bank and another, 1989 MPLJ 530 and State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086 . ( 10. ) MR. Mrigendra Singh, learned Counsel for the respondents has submitted that there was no bias on the part of the Managing Director and that is why a separate affidavit has been filed. It is urged that adequate opportunity was granted to the petitioner but he failed to avail the same and, therefore, the order came to be passed. It is further submitted by him that the petitioner was afforded ample opportunity to cross-examine the witnesses and no prejudice has been caused to him. It is urged that adequate opportunity was granted to the petitioner but he failed to avail the same and, therefore, the order came to be passed. It is further submitted by him that the petitioner was afforded ample opportunity to cross-examine the witnesses and no prejudice has been caused to him. Learned Counsel for the respondents further submitted that the documents were supplied to him and, therefore, he should not have any grievance. ( 11. ) BEFORE I proceed to deal with the rivalised submissions raised at the bar I think it appropriate to reproduce a free English translation of the charges levelled against the petitioner. They read as under:- "charge No. 1:- The delinquent employee, in the capacity of Vice president of the M. P. State Seed Certification Agency Employees union with the ulterior motive, created chaos charna and illegally closed the Agency and interrupted the working. The conduct of the employees is clearly violative of Rules 3 and 6 of M. P. Government servant Conduct Rules, 1965 and Rule 3 of the M. P. (Recognition of Service Association) Rules, 1959. Charge No. 2 :- The delinquent employee had given a memorandum letter dated 30-4-89 of fifteen demands including for removal of Mr. Denis Nathanial and given a notice for Dharna which is in violation of Rule 6 of the M. P. Government Servant rules. Charge No. 3:- He had written a letter in the capacity of the Vice president threatening to the go on strike whereas he was not legally the Vice President and his conduct is violative of Rules 3 and 6 of the M. P. Government Servant Conduct Rules, 1965 and Rule 3 of the M. P. (Recognition of Service Association) Rules, 1959. Charge No. 4 :- He wrote a letter in the capacity of President to the Agency raising certain demands of the employees. Registrar firms and Societies by letter dated 26-7-89 intimated that he is not holding any position in the said Employees Union. Charge No. 5 :- When he was transferred from Gadarwara to ambikapur along with others due to administrative reasons he provoked other employees to go on strike and the strike was called off only when his undue demands were accepted by the authorities. Charge No. 6:- On 19-7-89 he along with some intruders came in the office and misbehaved with Administrative Officer Mr. Denis nathanial. Charge No. 6:- On 19-7-89 he along with some intruders came in the office and misbehaved with Administrative Officer Mr. Denis nathanial. They abused him, beat him and threatened to kill him. Charge No. 7 :- On 1-8-89 he went to the office of Seed laboratory, Jabalpur and misbehaved with Seed Inspector and threatened to go on strike. Charge No. 8 :- On 30-4-89, 1-5-89, 13-5-89 and 14-5-89 he left the Head Quarters without leave and permission. He also remained absent from the Head Quarters for three days in June, 89. He also, without application, remained absent from Head Quarters from 18-7-89 to 25-7-89. " ( 12. ) IN Paragraphs 7 and 8 of the return which is reply to paragraphs of the petition it has been stated as under:- "7. That the contents of his para are specifically denied. It is denied that list of witnesses and other documents were not supplied to the petitioner. Along with the charge-sheet itself the statement of allegations, list of witnesses and list of documents were supplied to the petitioner. This fact is obvious from Annexure P-4. 8. That the contents of these paras are not denied so far as they relate to the recording of the statement of the petitioner and the other witnesses but it is specifically denied that the petitioner has not been given reasonable opportunity to defend himself. It is specifically denied that in any manner any prejudice has been caused to the petitioner in the inquiry. The entire inquiry record will be produced at the time of hearing of the petition which would reveal that the inquiry was conducted in a fair and impartial manner. " ( 13. ) IF aforesaid two paragraphs are read in juxtaposition with paragraph 10of the return which has been reproduced earlier, they would reveal that certain charges were proved on the basis of the documents and the petitioner was examined first and only list of documents were given to him. ( 14. ) IN the case of Ramshankar Yadav (supra), the Division Bench of this Court expressed the view that examination of delinquent employee at the commencement of the enquiry and examination of witnesses at a subsequent stage makes the inquiry unfair. The Bench also expressed the view that the same tantamount to non-granting of opportunity. ( 14. ) IN the case of Ramshankar Yadav (supra), the Division Bench of this Court expressed the view that examination of delinquent employee at the commencement of the enquiry and examination of witnesses at a subsequent stage makes the inquiry unfair. The Bench also expressed the view that the same tantamount to non-granting of opportunity. To arrive at the said conclusion the division Bench placed reliance on the decision rendered in the case of Associate cement Cos. Vs. Their Workmen, (1963) 1963-2 Lab. LJ (SC) 396, wherein it has been held as under:- "the other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak ram himself. Some of the questions put to Malak Ram clearly sound as questions in cross-examination. It is necessary to emphasize that in domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the inquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters we cannot overlook the fact that a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. " Thereafter the Bench expressed the opinion as under:- "these observations, which were made while dealing with domestic enquiries in industrial matters, apply with force to an enquiry against a Government servant. It must, therefore, be held that the elaborate cross-examination of the petitioner at the very commencement of the enquiry and thereafter as and when the evidence of witnesses was recorded constitutes a serious infirmity in the enquiry held against him. " ( 15. ) IN the case of Dewan Chuni Lal (supra), Their Lordships expressed the view that refusal to right to examine the witnesses amounts to denial of reasonable opportunity. ( 16. " ( 15. ) IN the case of Dewan Chuni Lal (supra), Their Lordships expressed the view that refusal to right to examine the witnesses amounts to denial of reasonable opportunity. ( 16. ) IN the case of Kashinath Dikshita (supra), it has been held as under:-"where the Govt, refused to its employee who was dismissed, the copies of the statements of the witnesses examined at the stage of preliminary inquiry preceding the commencement of the inquiry and copies of the documents said to have been relied upon by the disciplinary Authority in order to establish the charges against the employee and even in this connection the reasonable request of the employee to have relevant portions of the documents extracted with the help of his Stenographer was refused and he was told himself make such notes as he could, and the Govt, failed to show that no prejudice was occasioned to the employee on account of non-supply of copies of documents, the order of dismissal rendered by the Disciplinary Authority against the employee was violative of art. 311 (2) inasmuch as the employee has been denied reasonable opportunity of defending himself. " ( 17. ) IN the case of Rajkishore Pandey (supra), it was opined that normally the evidence on which the charges are to be proved must be led in the presence of the delinquent employee and unless there is compelling reasons inquiry should not bring recording evidence of delinquent employee prior to other witnesses unless he is ex parte. ( 18. ) IN the case of Ajit Kumar Nag Vs. CM. (P), Indian Oil Corpn. Ltd. , (2005) 7 SCC 764 , it has been held that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. In the said case, Their Lordships further held that the principle of natural justice are not rigid or immutable and hence, they cannot be imprisoned in a strait jacket and they must yield to and change with exigencies of situations. It is worth noting here that the Apex Court opined that the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than presidential. ( 19. ) IN the case of Canara Bank Vs. It is worth noting here that the Apex Court opined that the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than presidential. ( 19. ) IN the case of Canara Bank Vs. Debasis Das, (2003) 4 SCC 557 , it has been held as under:- "24. Additionally, there was ho material placed by the employee to show as to how he has been prejudiced. Though in all cases the post- decisional hearing cannot be a substitute for pre- decisional hearing, in the case at hand the position is different. " ( 20. ) IN the case of P. D. Agrawal Vs. State Bank of India and others, (2006) 8 SCC 776 , a two-Judge Bench of the Apex Court in Paragraph 39 has expressed the opinion as under:- "39. Decision of this Court in S. L. Kapoor Vs. Jagmohan, whereupon Mr. Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principle of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in state Bank of Patiala Vs. S. K. Sharma and Rajendra Singh Vs. State of M. P. , principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered in a nullity. To the principle doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a strait jacket formula. " ( 21. ) IN this context it is apposite to refer to the decision rendered in the case of MD, ECIL Vs. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a strait jacket formula. " ( 21. ) IN this context it is apposite to refer to the decision rendered in the case of MD, ECIL Vs. B. Karunakar, (1993) 4 SCC 727 , wherein it has been held as under:- "the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. " ( 22. ) I have referred to the aforesaid decisions only to highlight that the acid test is whether real prejudice has been caused. In the case at hand the petitioner was only given the list of documents but as is patent certain documents which were asked for were not supplied to him. He was examined first and thereafter witnesses were examined, as is patent, not in presence of the petitioner. Statements were given and he was asked later on to cross-examine the witnesses. What has been pleaded in the return is that adequate opportunity was given but these aspects have not been disputed. True it is real test is prejudice. The concept of prejudice is dependent on the fact situation. As is evident from the return, six charges have been proven on the base of documents but the said documents were not supplied to the petitioner. There is no material how they have been proved. Two other charges were proved by statements made by certain witnesses but the petitioner had no opportunity to cross-examine them. On a perusal of Annexure P-19, it is clear that he had prayed for time on his health grounds to defer examination of the witnesses but the said prayer was denied. On a perusal of Annexure P-20, inquiry report, it is evincible that the inquiry Officer found the charges to be proved on reasoning based on certain documents and evidence of witnesses who were not cross-examined and whose statements were recorded behind the back of the petitioner. In my considered view this irregularity in the procedure adopted by the Inquiry Officer has caused serious prejudice and such defect is incurable. ( 23. In my considered view this irregularity in the procedure adopted by the Inquiry Officer has caused serious prejudice and such defect is incurable. ( 23. ) IN view of the aforesaid premises, the impugned order of removal contained in Annexure P-13 and affirmation thereof in appeal as contained in annexure P-17 are quashed. The matter is relegated to the stage of examination of the witnesses before the Inquiry Officer. The documents sought for by the petitioner shall be supplied to him. The Inquiry Officer shall complete the inquiry within a period of four months from the date of receipt of the order passed today. The period from the date of dismissal till the date of finalization of the disciplinary proceeding shall be appropriately dealt with as per law by the disciplinary Authority. ( 24. ) THE writ petition is allowed to the extent indicated above. However, there shall be no order as to costs. Misc. Petition allowed.