JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri M.D.Singh Shekhar learned Senior Counsel assisted by Sri Ramesh Upadhaya for the petitioner, learned Standing Counsel for the State respondents and Sri Y.K.Saxena for respondent No. 4. Counter and rejoinder affidavits between the contesting parties has been exchanged. 2. By means of this writ petition the petitioner seeks to challenge the order dated 11.4.2008 (annexure 9 to the writ petition) passed by the District Inspector of Schools whereby he has granted approval to the proposal dated 5.6.2007 of the Committee of Management of Chaudhary Jawahar Singh Inter College Sutiyani, District Etawah proposing to dismiss the petitioner from service. The petitioner was working as a clerk in the institution. The petitioner also challenges the order dated 24.3.2009 (annexure 18 to the writ petition) whereby the appellate authority has affirmed the orders and rejected the representation/appeal filed by the petitioner. 3. Sri M.D. Singh Shekhar has pointed out to various paragraphs of the writ petition to indicate the proceedings taken up by the parties before this Court at every stage of the disciplinary proceedings/appeal. He has submitted that lastly in Writ Petition No. 56451 of 2008 this Court issued specific directions on 12.11.2008 to the Regional Joint Director of Education (Secondary) Kanpur Region, Kanpur for deciding the appeal by especially adverting to three points framed by the writ Court. He submits that neither of the three points have been considered by the appellate authority while passing the impugned appellate order dated 24.3.2009. 4. Sri M.D. Singh Shekhar has submitted that in so far as the first point of consideration by the appellate authority is concerned the same was as to whether the enquiry conducted by the managing committee was free and proper or not and the principles of natural justice were complied with or not. While referring to the records of this writ petition he states that last notice for the petitioner to receive the charge-sheet within three days was published in the news-papers on 23.5.2007. According to the petitioner he approached the authority on 25.5.2007 with an application. He states that the enquiry report was given on 27.5.2007 i.e. within four days of the publication of notice to show-cause in the newspapers. In support of his argument he has relied upon Regulation 36 of Chapter III of the regulations framed under the Intermediate Education Act. 5. He states that the enquiry report was given on 27.5.2007 i.e. within four days of the publication of notice to show-cause in the newspapers. In support of his argument he has relied upon Regulation 36 of Chapter III of the regulations framed under the Intermediate Education Act. 5. Sri Singh submits that in so far as the second point to which the appellate authority was to advert was as to whether the charges levelled against Sri Karan Singh Yadav (petitioner) were substantiated with evidence on which reliance has been placed by disciplinary authority or not. On this point he has argued that the evidence which was required to be considered on behalf of the petitioner was never considered because of violation of the first point framed by the writ Court. 6. Sri Y.K. Saxena learned counsel for the contesting respondent has disputed the submissions of learned counsel for the petitioner. For determining the point No. 1 framed by the writ Court Sri Saxena submits that the first notice was sent to the petitioner by registered post on 7.5.2007 and therefore a clear opportunity of three weeks as provided under Regulation 36 was given to the petitioner and when he did not participate the enquiry report was submitted on 27.5.2007 which is a clear compliance of the mandated period of three weeks. He submits that subsequent publication of notice on 23.5.2007 in the news-papers cannot be taken as the date from which the period of three weeks would run as required under Regulation 36. 7. On the second point Sri Saxena has submitted that the evidence available with the enquiry officer clearly substantiated the charges against him and when the petitioner did not participate in the enquiry the enquiry officer has considered the evidence, held the enquiry and given his enquiry report. He states that the approval order passed by the District Inspector of Schools and the appellate order have considered this aspect of the matter and have recorded a concurrent finding against the petitioner which cannot be interfered with in a writ petition under Article 226 of the Constitution of India. 8. On the third point to which the writ Court required the appellate authority to advert to, Sri Saxena submits that the appellate authority has admittedly not considered the issue as to whether punishment which has been awarded is commensurate to the charges levelled against the petitioner. 9. 8. On the third point to which the writ Court required the appellate authority to advert to, Sri Saxena submits that the appellate authority has admittedly not considered the issue as to whether punishment which has been awarded is commensurate to the charges levelled against the petitioner. 9. Having considered the submission of learned counsel for the parties and perused the record the impugned appellate order is to be tested for compliance of the directions issued by the writ Court on 12.11.2008 in Writ Petition No. 56451 of 2008. The direction is quoted hereunder : “Consequently, writ petition succeeds and allowed. The appellate order dated 19.9.2008 is hereby quashed and set aside and the matter is remitted back to the Regional Joint Director of Education (Secondary), Kanpur Region, Kanpur with direction to decide the appeal afresh within a period of two months from the date of receipt of a certified copy of this order, after affording opportunity of hearing to the nominee of Management and to delinquent employee. While deciding the appeal afresh the Joint Director of Education shall advert to; (i) as to whether enquiry so conducted by the Managing Committee was free and proper or not and the principles of natural justice were complied with or not? (ii) as to whether charges levelled against Karan Singh were substantiated with evidence on which reliance has been placed by disciplinary authority or not? (iii) as to whether punishment which has been awarded is commensurate to the charges levelled or not? The appellate authority will be free to make additional enquiry also in case appellate authority feels it expedient, and also free to exercise its independent discretion, in the matter of confirming, modifying or rescinding the action in question.” 10. The appellate authority has recorded a finding that the management has conducted a proper enquiry and upon perusal of the records and making an additional enquiry at the appellate stage it has found that the enquiry conducted by the managing committee was proper. The appellate authority has recorded a finding that the management has conducted a proper enquiry and upon perusal of the records and making an additional enquiry at the appellate stage it has found that the enquiry conducted by the managing committee was proper. The relevant portion of the findings recorded by the appellate authority is quoted hereunder; “bl izdkj Jh dju flag ;kno ds lsok lekfIr izdj.k ds lac/k esa izcU/k lfefr }kjk tks tkWp iz/kkukpk;Z Jh ukFkwjke ;kno }kjk djk;h x;h] ftlesa Jh dju flag ;kno dks nks"kh ik;k x;k rFkk ftu fcUnqvksa ij vkjksi izekf.kr gq, mudh iqf"V tkWp vf/kdkjh iz/kkukpk;Z Jh vferkHk cPpu jktdh; baVj dkyst lSQbZ bVkok Jh xtjkt flag o ftyk fo/kky; fujh{kd bVkok dh vk[;k ls Hkh gksrh gSA vr% ;g fl) gks tkrk gS fd og tkWp lgh vkSj mfpr Fkh rFkk Jh dju flag ;kno dks viuk i{k izLrqr djus gsrq i= fnukad 7-5-2007 ds }kjk iathd`r ek/;e ls lqfpr fd;k x;k ijUrq i= ds fyQkQs ij izkid ckgj x;s gS /kjokyksa us ysusa ls bUdkj fd;k vr% izs"kd dks okil fy[kdj okil vk x;k] ftuds mijkUr nSfud vkt lekpkj i= esa fnukad 23-5-2007 dks Hkh lwpuk izdkf’kr djk;h x;h ijUrq Jh dju flag mifLFkr ugh gq,A bl izdkj Jh dju flag ;kno dks viuk i{k j[kusa ds iw.kZ volj iznku fd;s x;s] ftlls Li"V gS fd izkd`frd U;k; ds fl)kUr dk iw.kZr% ikyu fd;k x;k gSA izek.k Lo:i tkWp vf/kdkjh }kjk fyQkQs dh rFkk nSfud lekpkj i= vkt dh Nk;kizfr layXu dh gSA izcU/k lfefr }kjk Jh dju flag ;kno ds fo:) tks 07 vkjksi yxk;s x;s gS og ftyk fo/kky; fujh{kd] bVkok ,oa tkWp vf/kdkjh }kjk miyC/k djk;h x;h tkWp vk[;k rFkk miyC/k lk{;ksa ds vk/kkj ij vkjksi iqf"Vr gksrs gS vkSj ;g Hkh Li"V gksrk gS fd Jh dju flag ;kno usa tkWp esa lg;ksx ugh fd;k vkSj tkucw>dj vkjksi i= izkIr ugha fd;k x;k rFkk u gh tcko fn;k x;kA mDr ds vk/kkj ij Jh dju flag ;kno ds fo:) izcU/k lfefr }kjk yxk;s x;s vkjksi izekf.kr gksrs gSA” 11. The aforesaid finding of the appellate authority is under challenge by the petitioner in these proceedings, therefore without entering into the disputed questions of fact raised by the contesting parties this Court finds that on the admitted facts clearly the conclusion of the appellate authority on point No. 1 is not borne out from the record. 12. The aforesaid finding of the appellate authority is under challenge by the petitioner in these proceedings, therefore without entering into the disputed questions of fact raised by the contesting parties this Court finds that on the admitted facts clearly the conclusion of the appellate authority on point No. 1 is not borne out from the record. 12. Sri Saxena has not disputed that the last notice to the petitioner was published on 23.5.2007. Although Sri Saxena submits that the period of three weeks contemplated under Regulation 36 must be calculated from the first notice sent to the petitioner i.e. on 7.5.2007, this Court finds that if the notice dated 7.5.2007 was sent by registered post and was not served the enquiry officer rightly got the notice published in the news-papers on 23.5.2007 since service could not be affected by registered post. It was a decision upon the wisdom of the enquiry officer to serve the petitioner. Consequently the submission of Sri Saxena that the period of three weeks under Regulation 36 should be calculated from 7.5.2007 cannot be accepted. 13. Thus on the admitted facts this Court finds that there was a violation of Regulation 36 by the enquiry officer inasmuch as he ought to have waited for three weeks after 23.5.2007 to receive any communication or reply from the petitioner. This fact is already qualified by the fact that the petitioner did make an application on 25.5.2007 whereas the enquiry report was submitted on 27.5.2007. 14. The law with respect to conduct of disciplinary enquiry has been settled by the Courts. It is true that if a delinquent employee avoids the enquiry or absents himself the enquiry officer is free to proceed in accordance with law but even then he has to conduct an oral enquiry by going through the evidence led by the employer against the employee to prove the charges. The said process has to be followed but only after awaiting for the time prescribed for the delinquent employee to submit his reply. In case the enquiry officer does not wait for three weeks to receive the reply of the charged employee as provided under Regulation 36 he would be violating principles of natural justice and it cannot be said to be an enquiry free or proper. 15. In case the enquiry officer does not wait for three weeks to receive the reply of the charged employee as provided under Regulation 36 he would be violating principles of natural justice and it cannot be said to be an enquiry free or proper. 15. In so far as the principles of natural of justice are concerned they can be said to have been violated if an employee is not noticed to meet the charges against him. Such violation cannot be alleged if, even after notice, the employee does not take benefit of an opportunity of hearing. 16. In the present case the admission of Sri Saxena regarding publication of notice on 23.5.2007 and conclusion of enquiry on 27.5.2007 indicates that a clear period of three weeks was not given hence it cannot be held that the principles of natural of justice were complied with inasmuch as there has been a total ignorance of the mandatory period of three weeks after the notice to show-cause. Consequently while not recording any finding on the conduct of the petitioner in not receiving the registered notice this Court has to record a finding on the basis of admitted facts that the petitioner was denied opportunity of hearing by not being granted the mandated time under Regulation 36 after issue of the last show-cause notice by publication in the news-papers on 23.5.2007. Consequently the finding in the appellate order, in so far as the first point required to be decided by it is neither supported by any evidence nor is on admitted fact hence cannot be sustained. Such finding in the appellate order is required to be set aside and it is set aside. 17. In so far as the second point to which the appellate order was required to advert to by virtue of the direction of the writ Court is concerned the appellate authority has recorded its finding on the basis of evidence before it and has concluded against the petitioner. It was an ex parte enquiry report admittedly behind the back of the petitioner and if such a report is in violation of the principles of natural justice it cannot be said that the charge has been substantiated on the evidence led against the charge. Admittedly no such evidence was before the Enquiry Officer. It was an ex parte enquiry report admittedly behind the back of the petitioner and if such a report is in violation of the principles of natural justice it cannot be said that the charge has been substantiated on the evidence led against the charge. Admittedly no such evidence was before the Enquiry Officer. Consequently the appellate authority has not adverted to the second point of consideration directed by the writ Court inasmuch as admittedly the petitioner was denied opportunity. 18. In so far as the third point is concerned Sri Y.K. Saxena learned counsel for respondent No. 4 has conceded that the appellate authority has not taken into consideration the aforesaid point for determination. 19. The order dated 11.4.2008 has been passed by the District Inspector of Schools approving the proposal of the Managing Committee to dismiss the petitioner. The District Inspector of Schools has taken into account the charges against the petitioner, the enquiry report dated 27.5.2007 and has given its conclusion. He has not considered the specific plea raised by the petitioner regarding lack of opportunity to file reply to the charges. The District Inspector of Schools has recorded that the documents being relied against him were shown to him by the management during the course of the enquiry. However it is not disputed that the notice to file reply was published on 23.5.2007 wherein he was given three days time to receive the charge-sheet and file his reply within the prescribed period. The prescribed period is admittedly three weeks. Therefore the Enquiry Officer had to wait for that period even according to the stipulation made in the publication at his own instance. It is also an admitted fact that the Enquiry Officer gave his report within four days on 27.5.2007 without waiting for the reply of the petitioner for which the petitioner was entitled to a period of three weeks. 20. The District Inspector of Schools in the impugned order dated 11.4.2008 has totally ignored this vital aspect of the case and has acted in violation of the mandatory provisions of the Regulations as also he has violated the principles of natural justice particularly when his order has resulted is adverse consequences to the petitioner. He was required to consider whether the enquiry was conducted in a fair and proper manner and whether the statutory provision governing these disciplinary proceedings were adhered to. He was required to consider whether the enquiry was conducted in a fair and proper manner and whether the statutory provision governing these disciplinary proceedings were adhered to. Having not done so the order has been passed with total non-application of mind and in an illegal manner. 21. Consequently the impugned appellate order as also the order of approval cannot be upheld. Both the orders dated 24.3.2009 (Annexure 18 to the writ petition) and order dated 11.4.2008 (Annexure 9 to the writ petition) are set aside. The District Inspector of Schools is required to reconsider approval of the proposal of the management committee based on the enquiry conducted by the Enquiry Officer, without being influenced with the observations made herein above and record his findings on the basis of record and in accordance with law. 22. Upon service of a certified copy of this order on the District Inspector of Schools by either of the parties the District Inspector of Schools must give full opportunity to all the parties before passing any order and take a decision preferably within a period of four months. In case the District Inspector of Schools takes more than four months he shall record his specific reasons for such delay. 23. The District Inspector of Schools is also required to summon the entire records pertaining to the enquiry from the committee of management and record his finding of fact. 24. In so far as the petitioner is concerned the consequential benefits to which he may be entitled if any shall be subject to result of the order passed by the District Inspector of Schools. 25. The writ petition is allowed. 26. No order is passed as to costs. —————