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2007 DIGILAW 839 (CAL)

Bistupada Das v. State Bank of Bikaner

2007-11-27

TAPEN SEN

body2007
JUDGMENT: TAPEN SEN, J. (1) THE Petitioner prays for quashing of the Order dated 10.8.2005, as contained in annexure P-14, whereby and where under, the Disciplinary Authority imposed the punishment of dismissal from service upon the petitioner with a further order that the entire period of suspension would be treated as such (period of suspension) and that nothing would be payable to him towards salary, allowances and consequential benefits, including annual increments, save and except the subsistence allowance already paid to him. The petitioner also prays for quashing the Order dated 18.10.2005, as contained in annexure P-16, whereby and where under, the Appellate Authority, dismissed the Appeal of the Petitioner, thereby upholding the Order of punishment of "dismissal from service without notice" imposed upon him by the Disciplinary Authority. (2) THE facts of this case are that while working as a Peon in the service Branch of the State Bank of Bikaner and Jaipur, situated on 14, N.S. Road, Kolkata, the Petitioner was put under suspension by an order dated 26.5.1997 (vide annexure P-1) issued by the Respondent No.2 i.e. the Asst. General Manager being the Notified Disciplinary Authority of the Petitioner (hereinafter referred to for the sake of brevity as the disciplinary Authority) for the allegation of being involved in a criminal case purportedly registered on 22.5.1997 in the Hare Street Police station, Kolkata which was subsequently followed by his arrest on the same day. By reason of the order of suspension it was indicated that the said order will not affect the Banks right to take disciplinary action against the petitioner in terms of the bipartite settlement. (3) DURING the pendency of the aforementioned criminal case, the petitioner received a Notice dated 7.4.2003 (as contained in annexure p-3) issued by the Disciplinary Authority whereby and where under, while referring to the incident which was the subject matter of the criminal case, he informed the petitioner that his acts were prejudicial to the banks interests which had tarnished its image and that they were gross misconducts. Accordingly, the petitioner was directed to show cause as to why disciplinary action should not be taken against him. The relevant text of the said Order reads as follows: "while working as Peon at our Service Branch, Kolkata in the year 1997, it is reported that you have allegedly committed the following acts of gross misconduct. Accordingly, the petitioner was directed to show cause as to why disciplinary action should not be taken against him. The relevant text of the said Order reads as follows: "while working as Peon at our Service Branch, Kolkata in the year 1997, it is reported that you have allegedly committed the following acts of gross misconduct. i) You, being the peon the Service Branch, Kolkata, which is situated at 14, N.S. Road, Kolkata in the same premises of our N.S. Road branch, was having unrestricted access to our N. S. Road Bench. You were having information about the customers who are obtaining payments from the cash counter of the aforesaid branch of the Bank. Therefore you conspired with miscreants and arranged for dacoity at the crossing of the Old China Bazar Street and Canning Street, kolkata, On 22.3.97 at about 1.15 PM whom Shri Ardhendu Panda s/o Shri Nirod Baran Panda of C-3/3 Gautam Vihar Complex PO agrico P.S. Sitaramdera, Jamshedpur came out of the premises of the bank with certain amount of money kept in a black colour VIP suitcase, you pointed it out to the other culprits, on looking to your signal, other culprints snatched away the suitcase containing money and on resistance of Shri Panda. They used firearms from close proximity and injured Shri Panda. Some other persons were also injured in the bomb blasted by other culprits. Violating the code of conduct, you have disclosed the secrecy of the Bank to the miscreants/members of the dacoity team, which resulted in death of the Banks two valuable Customers. Your aforesaid acts are prejudicial to the Banks interest and tarnished the image of the bank. These are gross misconducts in terms of para 19.5 (b) and 19.5 (j) of the first bipartite settlement dated 19.10.66 (amended from time to time) You are therefore, required to show cause to the undersigned as to why disciplinary action should not be initiated against you. If, no reply is received within 15 days of receipt of this letter, it will be presumed that you have nothing to say in this regard and the bank will commence disciplinary action against you. If, no reply is received within 15 days of receipt of this letter, it will be presumed that you have nothing to say in this regard and the bank will commence disciplinary action against you. (Quoted Verbatim) (4) THE Petitioner sent his reply vide his letter dated 3.5.2003 as contained in annexure P-4 denying the allegations leveled against him but by a Notice dated 12.5.2003 (annexure P-5), the Disciplinary authority informed him that he had appointed one Sukumar Saha, chief Manager of the Ballygunje Kolkata Branch as the Enquiry Officer and that the said Officer would advise him about the date, time and venue so that he could appear and attend the Enquiry before him. (5) IT appears that on the same day, the Disciplinary Authority also appointed one Smt. Sumitra Mondal, Chief Manager who was then posted in the Service Branch at Kolkata to act as the Presenting Officer to present the Banks case. (6) LET it be recorded here at this stage that so far as the Criminal case was concerned, the allegations were that on the 22nd day of March, 1997, at about 1.15 PM, the accused persons were alleged to have committed dacoity in as much as while the Complainant was working in a shop situated at 54a, Old China Bazaar Street, 3/4 miscreants suddenly caught hold of another person and attempted to snatch away a black coloured suitcase from his hand. One of the miscreants was carrying a revolver and another, a razor. The miscreant with the razor hurt the man with the suitcase and then the other miscreant carrying the revolver shot at him as a result of which, he fell dawn bleeding and then, there was a bomb blast whereafter the miscreants fled with the suitcase. On the basis of a written complaint, Hare Street Police Station case No. 174 dated 22.3.1997 was lodged and after investigation, Charge-sheet under section 396 and 397 IPC was submitted against the petitioner and other accused persons. These facts have been gathered from the Judgment of the learned City Sessions Court (annexure P-2). (7) THE aforementioned police case then gave rise to Sessions Case no. 55/1997 which was tried by the learned City Sessions Court (VIth Bench) at Kolkata and by Judgment dated 8. 7. These facts have been gathered from the Judgment of the learned City Sessions Court (annexure P-2). (7) THE aforementioned police case then gave rise to Sessions Case no. 55/1997 which was tried by the learned City Sessions Court (VIth Bench) at Kolkata and by Judgment dated 8. 7. 2003 (as contained in annexure P-2), the petitioner (Bistupada Das) along with the other accused persons were not found guilty under sections 396 and 397 of the Indian Penal Code and accordingly, acquitted. (8) THE petitioner has stated in Para-8 of the Writ Petition that he had challenged the Disciplinary Proceedings before this Court vide an earlier Writ Petition which was registered as W.P. No. 13091 (W) of 2003 but during the pendency thereof, the Enquiry Officer, Mr. Sukumar saha, completed the enquiry and submitted his Report on 12.06. 2004 vide annexure P-6 holding that the charges against the Petitioner were not proved. The petitioner has not stated anything with regard to the fate of this Writ Petition but from the "conclusion" portion of the report submitted by the Enquiry Officer in Paragraph-26 thereof, it is evident that initially these was an Order of Stay passed by this Court but subsequently, the same was withdrawn allowing the enquiry to continue. The said "conclusion" of the Enquiry Officer made in para 26 of his Report dated 12.06.2004 (annexure P-6) is reproduced in para 12 below. (9) ACCORDING to the Petitioner and as stated in Para-8 of the Writ petition, the Respondents, in spite of the aforesaid developments, proceeded in a "pre-planned and vindictive manner" and the disciplinary Authority, then "with the sole objective of holding the petitioner guilty", changed the Presenting Officer by appointing one Sri sudipto Banerjee, as the new Presenting Officer (Respondent No. 8) and also appointed a new Enquiry Officer, namely Sri V. D. Pachlangia, Chief manager, Vigilance Department, Head Office at Jaipur (Respondent No. 7). (10) THE Petitioner has attempted to support these assertions by stating that it was after the 1st Enquiry Officer had submitted his Report dated 12.06.2004 vide annexure P-6 holding the Petitioner not guilty that the same Disciplinary Authority passed another Order on 6.10.2004 (vide annexure P-7) by which, and on the basis of vague reasons, he not only changed the Enquiry Officer by appointing one Sri V. D. Pachlangia, Chief Manager, Vigilance Department, Head Office at Jaipur (Respondent No. 7) to act as the Enquiry Officer in place of Sri Sukumar saha (Respondent No. 5), but also changed even the Presenting Officer by appointing one Sri Sudipto Banerjee (Respondent No. 8) in place of the earlier Presenting Officer, namely Smt. Sumitra Mondal (Respondent No. 6). These facts are also evident upon a perusal of annexures P-7 and p-8 appended to the Writ Petition. (11) BEFORE we deal with the submissions, it is necessary to take note of what the First Enquiry Officer had to say on the charges leveled against the Petitioner. Although the Petitioner has stated in Para-8 that "in an unheard of procedure, no charge sheet was issued but the allegations in the original show cause notice was embellished by the second Presenting Officer" yet, this Court is not inclined to accept such a contention because even in the first Enquiry Report (annexure P-6)which has been heavily relied upon by the Petitioner in support of his contention that the same did not find him guilty, the charge-sheet as well as the Imputations of each of the charges were specifically mentioned in Paras-19 and 20 thereof. These two Paragraphs of the said enquiry Report read as follows: "19. Article of charge framed against Shri BISTUPADA DAS, peon (under suspension) on the basis of the Charge Sheet dated 7.4.2003: while working as peon at our Service Branch Kolkata in the year 1997, it is reported that Shri Bistupada Das has allegedly committed the following acts of gross misconducts. i) He being the peon of the Service Branch, Kolkata which is situated at 14 N.S. Road Kolkata in the same premises of our N.S. Road Branch, was having unrestricted access to our N.S. Road branch. He was having information about the customers who were obtaining payments from the cash counter of the aforesaid branch of the Bank. i) He being the peon of the Service Branch, Kolkata which is situated at 14 N.S. Road Kolkata in the same premises of our N.S. Road Branch, was having unrestricted access to our N.S. Road branch. He was having information about the customers who were obtaining payments from the cash counter of the aforesaid branch of the Bank. Therefore, he conspired with miscreants and arranged for dacoity at the crossing of the Old China Bazar Street and Canning street, Kolkata. On 22.3.97 at about 1.15 P. M. when Shri Ardhendu panda S/o Shri Nirod Baran Panda at C 3/3 Gautam Vihar Complex P.O. Agroco P. S. Sitaramdera, Jamshedpur came out of the premises of the Bank with certain amount of money kept in a black colour VIP suitcase, he pointed it out to the other culprits. On looking to his signal other culprits snatched away the suitcase containing money and on resistance of Shri Panda they used firearms from close proximity and injured Shri Panda. Some other persons were also injured in the bomb blasted by other culprits. Violating the code of conduct he has disclosed the secrecy of the Bank to the miscreants/ members of the dacoity team, which resulted in death of the Banks two valuable customers. His aforesaid acts are prejudicial to the Banks interest and tarnished the image of the Bank. These are gross misconducts in terms of para 19.5 (J) of the first bipartite settlement dated 19.10.1966 (amended from time to time). 20. Statement of Imputations in support of Article of Charge framed against Shri Bistupada Das, Peon (under suspension). i) While working at Service Branch as a peon he had free access of our N.S. Road Branch and he was having information about customers who were obtaining payments from cash counter of the N.S. Road Branch. ii) He conspired with the miscreants and arranged for a dacoity at the crossing of the Old China Bazar Street and Canning Street on 22.3.97 at 1.15 P.M. He pointed out to the other culprits that a person, shri Ardhendu Panda was carrying a black VIP suitcase containing money. iii) Violating the code of conduct, he has disclosed the secrecy of the Bank to the miscreants/member of dacoity team, which resulted in the death of the Banks two valuable customers. iii) Violating the code of conduct, he has disclosed the secrecy of the Bank to the miscreants/member of dacoity team, which resulted in the death of the Banks two valuable customers. (Quoted verbatim) (12) ON the basis of the aforesaid charge-sheet as well as the imputations of Misconduct, the relevant portions of the Report of the first Enquiry Officer were as follows: "based on the documentary and oral evidences produced before me, the Enquiry Officer during the enquiry proceedings it is evident as under: a) The nature of job of Shri Bistupada Das the charged employee (CE) as a peon was delivering debit notes/collecting cheques etc., to and from bank/branches, depositing withdrawals/cheques to and withdrawing cash from the staff accounts maintained at N. S. Road branch against the cheques/withdrawals handed over to him by the staff members of the Service Branch, as substantiated by the bw-1 (Enquiry Proceedings Register page No. 22). b) The charged Employee (CE) was the clearing representative (peon) in the morning shift on 22. 03. 97, the crucial day, as stated by the bw-1 and corroborated by EXB-4. c) As a clearing representative of the bank it was possible that he could have the information of the customers who are due to receive the payment or deposit money on the particular clearing date, if he so desired. But it is not proved that the Charged employee (CE) had free/unrestricted access over the affairs/ information at N. S. Branch. d) This imputation No.(i) is no established. Based on the documentary and oral evidences produced before me during the enquiry proceedings it is evident: a) On 22.03.97 (Saturday) the charged employee was on duty from 7. 30 A.M. and was expected to leave the branch at 12. 00 hours as no extra work was allotted to him, as substantiated by the BW-1 (Enquiry Proceeding register page No. 23 and 24). b) No departure time was mentioned on the attendance register on 22.03.1997 (EXB4) as he (charged employee) seldom used to mark his departure time on the attendance register. c) It is not proved that the charged employee was present at the place of incident (dacoity) at 1.15 PM on 22.03.1997. d) This imputation No. (ii) is not established. b) No departure time was mentioned on the attendance register on 22.03.1997 (EXB4) as he (charged employee) seldom used to mark his departure time on the attendance register. c) It is not proved that the charged employee was present at the place of incident (dacoity) at 1.15 PM on 22.03.1997. d) This imputation No. (ii) is not established. Based on the documentary and oral evidences produced before me during the enquiry proceedings it is evident a) The incident of dacoity occurred on 22.03.97 and the alleged involvement of the Charged Employee (CE) in the above mentioned dacoity case came to the knowledge of the Bank only on 22.05.1997 at the time of his arrest by the police authorities from the branch as evidenced by the BW-1 the then Branch Manager of the Service Branch (Enquiry Proceedings Register page No. 24). b) It is not proved that the charged employee (CE) disclosed the secrecy of the Bank to the Miscreants/members of the dacoity team. c) It is not proved that the illegible person Shri Ardhendu Panda is a customer of the Bank. d) This imputation No. (iii) is not established. (Quoted Verbatim) (13) AFTER the abovementioned findings, the Enquiry Officer gave his final conclusions in Para-26 of the Report which read as follows: "26. CONCLUSION (a) The regular/final hearing was started on 20/12/2003 only after the order of the Honorable High Court dated 8/12/2003 passed in W. P. 13091 (W) of 2003 withdrawing the stay order granted on 25/11/2003 for staying all further disciplinary proceedings (copy enclosed) (annexure-I). (b) The regular/final hearing was completed on 24/04/2004 and the written briefs submitted by the Presenting Officer (PO) and the defence Representative (DR) were duly received by me. (c) On assessment of the various documentary and oral evidences it is found that all the three imputations are not established and therefore the article No. (i) of charge framed against the Charged employee (CE) vide Charge Sheet bearing no Region -1/misc/nil dated 07/04/2003 is not proved. (d) It will not be out of place to mention that the defence produced a certified copy of the Judgment/order passed by the learned City sessions Court at Calcutta on 08/07/2003 in the original case bearing no SC 55 of 1997. A study of the Judgment/order reveals that Shri BISTUPADA DAS is found not guilty under section 396 and 397 I. P. C (Exd-2/13). A study of the Judgment/order reveals that Shri BISTUPADA DAS is found not guilty under section 396 and 397 I. P. C (Exd-2/13). (Quoted Verbatim) (14) IT is evident that after all these developments and 4 (four) months thereafter, the same Disciplinary Authority issued a Letter dated 06.10.2004 (annexure P-7) wherein he stated that "a perusal of the enquiry report revealed that certain crucial aspects were overlooked during the course of the enquiry proceedings. " these are the only reasons given and they are that - "certain crucial aspects were overlooked". The said Letter reads as follows: state BANK OF BIKANER AND JAIPUR DELHI ZONAL OFFICE region-I/misc/06.10.04 shri BISTUPADA DAS peon (UNDER SUSPENSION)STATE BANK OF BIKANER AND JAIPUR SERVICE BRANCH kolkata dear Sir, disciplinary Action charge sheet dated 07.04.04 was issued to you for certain acts of misconduct alleged to have been committed by you while working at our Service Branch Kolkata. Since the reply submitted by you to the charge-sheet was not found to be satisfactory, an enquiry was instituted into the matter in order to provide you an opportunity to defend yourself. The said enquiry was concluded on 24.04.04, but a perusal of the enquiry report revealed that certain crucial aspects were overlooked during the course of the enquiry proceedings. I have therefore appointed Shri V. D. Pachlangia, Chief Manager at Vigilance department Head Office Jaipur as Enquiry officer to cover those aspects of the charges which were crucial to the case and which were not given due weightage during the course of the enquiry proceedings instituted into the matter vide order dated 12.05.03 contained in the charge sheet bearing reference Region-I-Misc/dated 07.04.03. The date, time and place of enquiry will be advised to you by the enquiry Officer and you will remain available to him as and when required. You are advised a finalise the selection of your representative before the commencement of the enquiry proceedings in case you wish to engage anyone to defend your case. In terms of para 521 (10) of the Sastry Award an employee shall be permitted to be defended by: 1. A representative of a registered union of bank employees of which he is a member on the date first notified for the commencement of the enquiry. 2. In terms of para 521 (10) of the Sastry Award an employee shall be permitted to be defended by: 1. A representative of a registered union of bank employees of which he is a member on the date first notified for the commencement of the enquiry. 2. Where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed, or 3. At the request of the said union by a representative of the State federation or all India Organisation to which such a union is affiliated. 4. With the Banks permission by a lawyer. Please acknowledge receipt. Yours faithfully, (N. M. JAIN) NOTIFIED DISCIPLINARY AUTHORITY (Quoted Verbatim but emphasis by bold fonts is supplied by this court) (15) ON the basis of the aforesaid Letter dated dated 06.10.2004, the new Enquiry Officer conducted a fresh enquiry and then submitted his report dated 9.3.1995 (vide annexure P-10) whereby and where under he found the Petitioner guilty of the charges leveled against him. Thereafter the Disciplinary Authority by his Letter dated 28.6.2005 (annexure P-12) informed the Petitioner that he proposed to dismiss him from service and accordingly, gave 10 days time to him show cause as to why the said punishment be not imposed upon him. (16) THE Petitioner filed his Cause on 3.8.2005 vide Letter as contained in Annnexure P-13 but by Order dated 10.8.2005 (annexure P-14), the disciplinary Authority passed the impugned Order of punishment. Thereafter the Petitioner preferred an Appeal on 2.9. 2005 vide annexure p-15 but that was rejected vide the impugned Order/communication dated 18.10.2005 as contained in annexure P-16. (17) THE Respondents have filed their Affidavit-in-opposition in which they have taken various points including the point that the Petitioner has an alternative remedy under the Industrial Disputes Act. They have also repeated and narrated the incident as reported in the criminal case and on the basis thereof, they have stated that the Petitioner conspired with the miscreants and violated the code of conduct of the Bank and also acted in a manner that was prejudicial to the interests of the Bank by disclosing valuable information to the miscreants which resulted in the death of two valuable customers of the Bank. According to them, the Petitioner was arrested by the Kolkata Police on 22.5. According to them, the Petitioner was arrested by the Kolkata Police on 22.5. 1997 and he remained in judicial custody for about 8 months and that he had given a confessional statement to the Judicial Magistrate admitting his guilt. They have also stated that on 7.4.2003 a charge-sheet was issued against which he submitted a reply where after the Respondents appointed an Enquiry Officer and a Presenting officer. The Petitioner participated in the enquiry but the Enquiry Officer did not consider the oral evidence of the Sub-Inspector of Police and which was the confessional statement of the Petitioner and therefore, the Disciplinary Authority had strong reasons to believe that the enquiry was not conducted properly and therefore a further enquiry was ordered by appointment of the respondent Nos. 7 and 8 as fresh Enquiry and Presenting Officers respectively. They have also stated that the Petitioner participated even in the second enquiry proceedings which were never challenged at any point of time and as such, he is estopped from challenging the same at this stage. (18) LEARNED counsel for the Petitioner has strenuously contended once the Petitioner was acquitted in the criminal case, the Respondents could not have found him guilty on the self same charges in the departmental Proceedings. This Court has no hesitation in rejecting such a contention in view of the Judgment of the Supreme Court in the case of Kendriya Vidyalaya Sangathan v. T. Srinivas, reported in AIR 2004 SC 4127 where their Lordships have held that the approach and objective in criminal proceedings and departmental proceedings are altogether distinct and separate. Relying upon an earlier Judgment in the case of State of Rajasthanv. Relying upon an earlier Judgment in the case of State of Rajasthanv. B. K. Meena, reported in AIR 1997 SC 13 , their Lordships in Para-12 of Kendriya Vidyalayas case (supra) have specifically laid down that "in the disciplinary proceedings the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him." (19) LET it not be forgotten that although the Petitioner was acquitted in the criminal case, he nevertheless was in judicial custody for a period of about 8 (eight) months as has been stated by the Respondents in Para 8 of the Affidavit-in-opposition. (20) HOWEVER, this Writ must succeed on an altogether different point and which will be clear from the following Paragraphs. (21) MR. Saumya Majumder, learned counsel appearing for the respondents has raised various points. He has submitted that the petitioner being an award staff, the Bank should be given the right to lead their evidence before the Industrial Forum and to prove that the charges were correctly brought without succumbing to the jurisdiction under Article 226. In other words, he insists that the Petitioner has an alternative remedy by invoking the Industrial Disputes Act, 1947. (22) THE Court does not accept such a contention of Mr. Mazumdar. It is true that the Petitioner is an award staff but in the instant case, the Respondents have taken recourse to a "weird" procedure which must be held to be illegal. They had correctly initiated the Proceedings on 7.4.2003 but when the Enquiry Officer did not find the Petitioner guilty, the Disciplinary authority could have differed with the findings of the enquiry Officer by giving reasons. Thereafter he could have ordered a fresh Enquiry but on the basis of no reasons at all, he could not have changed both the Enquiry Officer as well as the Presenting Officer. Thereafter he could have ordered a fresh Enquiry but on the basis of no reasons at all, he could not have changed both the Enquiry Officer as well as the Presenting Officer. The reason why this Court insists that the Disciplinary Authority did not give reasons as to why he differed with the findings of the Enquiry officer is because all that he said in his letter dated 06.10.2004 (annexure P-7) was a VAGUE ONE-LINE to the effect that "a perusal of the enquiry report revealed that certain crucial aspects were overlooked during the course of the enquiry proceedings." 22.1 What were these crucial aspects which straightaway prompted the Disciplinary Authority to appoint a TOTALLY NEW Enquiry Officer and a TOTALLY NEW Presenting Officer without giving an opportunity of hearing to the Petitioner? His action is as if he suo motu took upon himself a huge responsibility of only attempting to find the Petitioner guilty notwithstanding the first Enquiry officer having exonerated him thoroughly and notwithstanding also the fact that the Petitioner was acquitted in the criminal case. 22. 2 In this context, the words of the Honble Supreme Court in paragraph 31 of the case of Yoginath D. Bagde v. State of Maharashtra, reported in (1999)7 SCC 739 , become worth pointing out. They read as follows:"31. In view of the above, a delinquent employee has the right on hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry office are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent, That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution. " (23) FOR the foregoing reasons, the Respondents must be said to have acted totally illegally and therefore, the bar of alternative remedy, AT This STAGE, will not apply against the Petitioner. (24) FOR the foregoing reasons alone, this Writ Petition must succeed and it a accordingly allowed to do so. The Writ Petition is allowed and the impugned Orders are set aside and the matter is remanded to the respondents to take a fresh decision in accordance with law from the stage of receipt of the Report of the 1st Enquiry Officer which was submitted vide Report dated 12.06.2004 as contained in the annexure p-6. As a consequence of this Order, the second Enquiry Report submitted vide Report dated 09. 03.2005 (annexure P-10), will also be deemed to be set aside. As a consequence of this Order, the second Enquiry Report submitted vide Report dated 09. 03.2005 (annexure P-10), will also be deemed to be set aside. Since this matter is now being remanded to the authorities in the manner and for the reasons stated above, it is not necessary for this Court to deal with the other points raised by Mr. Saumya Majumder at this stage. (25) SINCE this matter has dragged on for such a long period of time, it will be only in the interests of justice to direct that the Respondents would complete the entire exercise in the manner indicated above within a period of 4 (four) months from the date of receipt of a certified copy of this Judgment. (26) IN order to enable to Respondents to do the needful, office will immediately transmit the records of this case to the Department which will ensure that Certified Copies are issued/handed over to the parties within a period of 1 (one) week from the date of application for the same. (27) IT is made clear that in the event the disciplinary proceedings are not completed within the period indicated above, the Respondents would forfeit their right to proceed any further with the Petitioner. It is also made clear that this Order is subject to the rendering of total and complete cooperation from the side of the Petitioner. There shall be no Order as to Costs. Petition allowed.