JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties on Civil Misc. Delay Condonation Application No. 233079 of 2013 and Civil Misc. Restoration Application No. 233082 of 2013 and perused the affidavits filed in support of the aforesaid applications. Cause shown is sufficient. Delay is condoned. The application for condonation of delay is allowed. The order dated 3.9.2011 dismissing the appeal in default is recalled and the appeal is restored to its original number and status. 2. Heard learned counsel for the parties on merit with regard to special appeal and perused the record. 3. This intra-Court appeal has been preferred challenging the validity and correctness of the impugned judgment and order dated 15.4.2004 passed in Civil Misc. Writ Petition No. 5596 of 1998, Harbansh Singh v. State of U.P. and others, whereby the aforesaid writ petition was allowed. 4. Brief facts giving rise to the instant appeal are that Harbansh Singh, respondent No. 2 (since deceased) was working as the Officer-in-Charge at Sugarcane Breeding and Research Centre, Nichlaul, Mahrajganj. While working he was charge-sheeted and after an enquiry his services were terminated by the order dated 21.1.1998. Aggrieved, respondent No. 2 (since deceased) preferred Civil Misc. Writ Petition No. 5596 of 2004, Harbansh v. State of U.P. and others, which was allowed vide judgment and order dated 15.4.2004, the relevant portion of which reads thus : “Clause 18.10 of the Service Rules provides that before any action is taken, the enquiry report ought to be supplied to the incumbent. A clear statement to the effect that the enquiry report was not supplied to the petitioner before the impugned order was passed has been made in paragraph 14 of the writ petition. This statement has not been denied in the counter-affidavit, though it has been explained that the show-cause notice was based upon the enquiry report and the petitioner himself never demanded a copy of the report. The law casts a duty upon the employer to supply a copy of the enquiry report before or alongwith the show-cause notice in case the Enquiry Officer is other than the Disciplinary authority. In the present case, both the authorities were different and it is immaterial whether the incumbent had demanded the copy of the enquiry report. The law casts a duty upon the employer to supply a copy of the enquiry report before or alongwith the show-cause notice in case the Enquiry Officer is other than the Disciplinary authority. In the present case, both the authorities were different and it is immaterial whether the incumbent had demanded the copy of the enquiry report. The law in this regard is very settled that if the enquiry report is not supplied, the resultant order is vitiated as non-supply would be in violation of principles of natural justice. The Apex Court in Union of India v. Mohammad Ramzan Khan, 1991 (1) SCC 727; Punjab National Bank v. Kunj Behari Misra, 1998 (7) SCC 81 , has consistently taken this view. In my view, the contention of the learned counsel for the petitioner has substantial force and the impugned order is not legally sustainable. Normally the matter should be remanded to the authorities concerned for passing orders afresh after supplying a copy of the enquiry report, but since Harbansh Singh is already dead, remand would be futile. In view of the discussions hereinabove, the writ petition succeeds and is allowed and the impugned order dated 21.2.1998 is hereby quashed. The respondents are hereby directed to release the entire salary payable to Sri Harbansh Singh to his heirs who are petitioners in this case in accordance with law and to further release the family pensions etc. payable to them within a period of ten weeks from the date of submission of a certified copy of this order. No order as to costs.” 5. Feeling aggrieved by the aforesaid judgment and order dated 15.4.2004, appellants have filed this appeal on the ground that it is settled law that mere non-supply of copy of inquiry report would not make the termination order bad and delinquent employee has to explain and demonstrate that non-supply of copy of inquiry report has affected his right or caused prejudice to him; that the Writ Court has failed to consider that respondent No. 2 (since deceased) was charged with serious offences of misconduct and misappropriation of public fund and that the Writ Court by the impugned judgment has erroneously directed the appellants to pay full back wages and since the respondent No. 2 had expired in the mean time, a direction has been issued to pay family pension to his family. It is stated that the learned Single Judge has failed to consider that before terminating the services of respondent No. 2 (since deceased), the appellants had afforded full and fair opportunity of hearing to him, hence, in this view of the matter, the impugned judgment and order is liable to be set aside. 6. In support of the aforesaid grounds, learned counsel for the appellants has relied upon paragraph 20 of the judgment rendered in the case of Burdwan Central Cooperative Bank Limited and another v. Asim Chatterjee and others, (2012) 2 SCC 641 . Paragraph 20 of the judgment reads thus : “20. It was also observed in B. Karunakar case that in the event the enquiry officer’s report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice has been caused to him on account of non-supply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee.” 7. Per contra, learned counsel for the respondents submits that a copy of the inquiry report was not supplied to respondent No. 2 (since deceased) either after conclusion of the inquiry or alongwith the show-cause notice issued by the Disciplinary Authority and as such the termination order depriving him a reasonable opportunity of hearing and being in violation of principles of natural justice was illegal. According to him, the Writ Court has rightly set aside the termination order and there being no illegality or infirmity in the impugned order, hence it requires no interference by this Court. 8. After hearing learned counsel for the parties and on perusal of the record it appears that clause 18.10 of the Service Rules provides that before any action is taken against a delinquent employee, copy of the inquiry report should be supplied to him. In paragraph 14 of the writ petition it was averred by the petitioner-respondent No. 2 (since deceased) that the copy of the inquiry report was not supplied to him before passing of the impugned order of terminating his services. This averment is not denied in the counter-affidavit, hence being unrebutted is liable to be accepted. In paragraph 14 of the writ petition it was averred by the petitioner-respondent No. 2 (since deceased) that the copy of the inquiry report was not supplied to him before passing of the impugned order of terminating his services. This averment is not denied in the counter-affidavit, hence being unrebutted is liable to be accepted. Moreover, it was duty of the employer to provide a copy of the inquiry report to the delinquent employee on conclusion of the enquiry or alongwith the show-cause notice in case the Enquiry Officer was other than the Disciplinary Authority. It is well-settled law that if the copy of the inquiry report is not supplied to the delinquent employee, it would vitiate the order of punishment as has been held in the cases of Union of India v. Mohammad Ramzan Khan, 1991) (1) SCC 727 and Punjab National Bank v. Kunj Behari Misra, 1998 (7) SCC 81 . 9. In our considered opinion, the learned Single Judge has rightly held that normally in such cases the matter should be remanded to the authorities concerned for passing order afresh after supplying a copy of the inquiry report but respondent No. 2 (since deceased) has already expired, remand would be futile. 10. As regards the ruling cited by the learned counsel for the appellants it is sufficient to say that it is clearly distinguishable and is not applicable to the facts and circumstances of the present case. There appears to be no illegality or infirmity in the impugned order of the learned Single Judge, hence the special appeal is liable to be dismissed. 11. For all the reasons stated above, the special appeal is dismissed. No order as to costs. ————— employee other than a permanent employee, or probationer may be terminated and he may leave service after 14 days’ notice. If such an employee leaves service without giving such notice he shall be liable for a week’s pay (including all allowances); (5) An order relating to discharge or termination of service shall be in writing and shall be signed by the Manager. If such an employee leaves service without giving such notice he shall be liable for a week’s pay (including all allowances); (5) An order relating to discharge or termination of service shall be in writing and shall be signed by the Manager. A copy of such order shall be supplied to the employee concerned; (6) In cases of contemplated closing down or of retrenchment of more than five employees, the following procedure shall be observed: (a) two month’s notice of such proposed action shall be given individually to all the employees concerned, with a statement of the reasons for such proposed action ; (b) the Manager or an officer empowered in this behalf shall within the period of such notice hear any representation from the employees concerned or any registered union of the bank employees; (c) after the hearing of such representation and the receipt of a report in the matter, if necessary, by the management, if it decides to give effect to the contemplated closing down or retrenchment in the original or an amended form the services of the employees may be terminated by giving notice or payment, in lieu thereof for the periods prescribed above.” 14. It is not disputed between the parties that the petitioners are confirmed employees and the impugned order was passed without putting the petitioners to notice or giving them opportunity to show-cause, further petitioners had not concealed their educational qualification at the time of appointment. 15. The respondents have contended that the termination order was passed strictly as per the provisions of the Shastri Award, and as per the Bank’s guidelines, Human Resource Development Division Head Office letter dated 19.12.2009, it is clearly mentioned that the minimum as well as maximum educational qualification is 12 standard or its equivalent with basic knowledge to read and write in English, as specified in H.R.D. Circular No. 25/2008 dated 6th November, 2008 which has been brought on record by the respondent Nos. 2, 3 and 4 in the counter-affidavit sworn by Deputy Manager (Law) Punjab National Bank circle Office Bulandsahar which is extracted below : “lHkh eaMy izeq[k 6 uoEcj] 2008 ekuo lalk/ku fodkl izHkkx ifji= la[;k&25@2008 fo"k;%& v/khuLFk deZpkfj;kas dh HkrhZ v/khuLFk laoxZ ds varxZr deZpkfj;kas dh HkrhZ ls lacaf/kr fof'k"V fn'kkfunsZ'k izca/ku fodkl izHkkx ifji= la- 2 fn- 20-4-1972 ,oa dkfeZd izHkkx ifji= la- 46@79 fn- 29-8-1979 eas ifjpkfyr fd, x, FksA v/khuLFk laoxZ ds varxZr deZpkfj;kas dh HkrhZ gsrq vk;q ,oa 'kS{kf.kd ;ksX;rk ls lacaf/kr fof'k"V fn'kkfunsZ'kksa dks dze'k% dkfeZd izHkkx ifji= i= la- 18@87 fn- 18-4-1987 rFkk ekuo lalk/ku fodkl izHkkx ifji= i= la- 9@2004 fn-14-10-2004 ds vuqlkj la'kksf/kr fd;k x;k FkkA v/khuLFk laoxZ eazs HkrhZ gsrq 'kS{kf.kd ;ksX;rk ,oa vk;q dks cSad ds funs'kd eaMy }kjk la'kksfèkr fd;k x;k gS] ftudk fooj.k fuEu vuqlkj gS%& d 'kS{kf.kd ;ksX;rk 12oha d{kk vFkok blds led{k ijh{kk mRrh.kZ dh gks rFkk vaxzsth ¼lHkh Jsf.k;ksa gsrq½ Hkk"kk dks i<+us@sfy[kus dh vk/kkjHkwr ;ksX;rk gksA [k vk;q ;fn fjfDr;ka 30 twu ls iwoZ vf/klwfpr gks tkrh gSa rks 1 tuojh ds vuqlkj vkSj ;fn fjfDr;ka dySaMj o"kZ dh nwljh Nekgh ds nkSjku vfèklwfpr dh tkrh gSa rks 1 tqykbZ ds vuqlkj vkosnd dh U;wure vk;q 18 o"kZ rFk vf/kdre vk;q 24 o"kZ gksxhA 16. From the bare perusal of the circular dated 6th November, 2008, it is evident that the person should have passed 12th exam and should know to read and write in English. The circular nowhere prescribes that 12th is the maximum qualification. The document does not support the pleadings averred in paragraph 13 of the counter-affidavit wherein it has been stated as follows : “13............... In reply it is respectfully submitted before this Hon’ble Court that in terms of Bank’s guidelines, HRD Division, Head Office letter dated 19.12.2009 - it is clearly mentioned that minimum as well as maximum educational qualification is pass in 12th Standard and its equivalent with basic reading/writing konwledge of Engilish as psecified in HRD Circular No. 25/2008 dated 6.1.2008. In this regard the deponent is collectively filing the true copy of letter dated 19.12.2009 as well as HRD Circular No. 25/2008 dated 6.1.2008 and marked as Annexure C.A. and 3 to this affidavit. 17. In this regard the deponent is collectively filing the true copy of letter dated 19.12.2009 as well as HRD Circular No. 25/2008 dated 6.1.2008 and marked as Annexure C.A. and 3 to this affidavit. 17. The counsel for the bank was allowed time on several dates to bring on record the relevant documents pertaining to qualification and pursuant thereof Sri H.K. Kulshreshtha, Senior Manager, Punjab National Bank, Circle Officer, Bulandsahar filed a supplementary-affidavit wherein it has been averred in paragraph 3 that the Hindi translated version of HRD Circular No. 25/2008 dated 6th November, 2008 was filed in the counter-affidavit; in “English Version” it is specifically mentioned in the head of educational qualification that “educational qualification for post of peon shall be maximum and minimum 12th pass”. The educational qualification mentioned in the English version of the circular dated 6th November, 2008 is as follows : Educational Pass in XIIth Standard or its equivalent, with basic Qualification reading/writing knowledge of English. (For all Categories) MAX AND MINI - 12th PASS 18. In Hindi version as well as the English version, the only difference is that in the English version maximum and minimum 12th pass has been added whereas both the circulars provides that the educational qualification is pass in 12th Standard. 19. Learned counsel for the petitioner during the course of the argument produced documents from the official website of the Punjab National Bank of the English verison of the circular and the circular does not mention the “maximum and minimum 12th pass”, when confronted with the document, the learned counsel for the respondent again sought time for instructions which was declined for the reason that the circular was in consonance with the Hindi version of the circular. 20. The conduct of the bank in filing affidavit which are self contradictory to their own documents and not taking a clear stand is abuse of proses of Court and strengthen the plea of victimization of its lowest class of employees. It is also not the case of the respondents bank that the Hindi version of the circular is not the correct/authentic version and further the bank is unable to explain as to how, the English version mentions the maximum and minimum qualification as 12th pass whereas the educational qualification is mentioned as pass in 12th Standard or its equivalent. 21. It is also not the case of the respondents bank that the Hindi version of the circular is not the correct/authentic version and further the bank is unable to explain as to how, the English version mentions the maximum and minimum qualification as 12th pass whereas the educational qualification is mentioned as pass in 12th Standard or its equivalent. 21. Officials of the respondent-bank have exposed themselves for both criminal and civil consequences. 22. Supreme Court in the case of V. Chandrashekaran and another v. Administrative Officer and others, (2012) 12 SCC 133 , observed that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take in consistent positions. Paras 45, 46 and 47 are as follows : “45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the Court to subvert justice, for the reason that the Court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the Court. 46. In Dalip Singh v. State of U.P. and others, (2010) 2 SCC 114 , this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of Court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 47. The truth should be the guiding star in the entire judicial process. Every trial is a voyage of discovery in which truth is the quest. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. Every trial is a voyage of discovery in which truth is the quest. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari and another v. State of Uttar Pradesh and others, (2010) 10 SCC 677 ; and Amar Singh v. Union of India, (2011) 7 SCC 69 ). 23. The learned counsel has relied upon a judgment of the Supreme Court rendered in Commissioner of Trade Tax Uttar Pradesh v. Associated Distributors Limited, (2008) 7 SCC 409 , wherein the Court while examining the contents of a notification issued under the U.P. Sales Tax Act, 1948 held that the notification issued in Hindi will be applicable, in case, there is contradiction in the notifications in the English Version of the notification. Para 7 is as follows : “7. It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the Courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that Bubble-gum comes within the category of a Sweet.” 24. In the facts of the case referred to above, the Court was examining as to whether “bubblegum” would be included in the notification so as to mean sweet meat etc. The ratio of the judgment may not apply on the facts of the present case as to question involved is not regarding the interpretation of any word or phrase having contradictory meanings in the Hindi or English version of the circular but as to whether the phrase “maximum and minimum 12th pass” is a part of the circular dated 6th November, 2008, the bank itself is not clear regarding the contents of there own circular or are trying to mislead the Court by filing contradictory documents and affidavits. 25. 25. Even presuming that the maximum qualification was 12th pass, the petitioner in the peculiar facts of the case cannot be penalized as they were graduate at the time of appointment and they have not suppressed their qualification and on being confirmed they applied for permission to appear in the post graduate examination as private candidates which was duly approved by the bank and subsequently a cryptic impugned order was passed that the appointments was not as per the qualification and hence their services has been dispensed with without giving any opportunity or notice as required under paragraph 522 of the Shastri Award. 26. It is not the case of the respondent-bank that the petitioners do not have the minimum qualification but have been disqualified for the reason that they are graduates. 27. The names of the petitioners was sponsored by the employment exchange and it is not the case of the respondents that the petitioners had made an application in any prescribed form suppressing their qualifications. The respondent-bank has not brought on record the advertisement, if any, issued in the news papers and the candidates who were sponsored from the employment exchange were not put to notice regarding the qualification for appointment on the post of peon. The services of the petitioners have been terminated exercising powers under paragraph 522 (1) of the Shastri Award which provides that in case, not involving disciplinary action and subject to Clause (6) the employment of a permanent employee may be terminated by three months notice on payment of three months pay and allowances in lieu of notice. The impugned order has not been passed as per Clause (1) of Shastri Award para 522, admittedly no three months notice or salary in lieu thereof was paid to the petitioners. The impugned order dated 23.3.2011 only provides that the services of the petitioners shall stand terminated w.e.f. 1.4.2011. 28. The Supreme Court in Balmer Lawrie & Company Limited and others v. Partha Sarathi Sen Roy and others, (2013) 8 SCC 345 , held that a permanent employee of an Organization, which is a State within the meaning of Article 12, cannot incorporate such a Clause terminating the services of the employee on notice or salary or wages in lieu of notice. Paragraphs 29, 30, 40 and 41 are as follows : “29. Paragraphs 29, 30, 40 and 41 are as follows : “29. In West Bengal State Electricity Board and others v. Desh Bandhu Ghosh and others, (1985) 3 SCC 116 , this Court considered a case where the respondent-employee was terminated by giving him only three months’ notice, and without holding any enquiry or informing him about any actions on his part that were unwarranted. The Court, after placing reliance on the judgment in Workmen v. Hindustan Steel Ltd., AIR 1985 SC 251 , held that where a regulation enables an employer to terminate the services of an employee, in an entirely arbitrary manner and in a manner that confers vicious discrimination, the same must be struck down as being violative of Article 14 of the Constitution. Therefore, even Standing Orders must be non-arbitrary, and must not confer uncanalised and drastic powers upon the employer, which enables him to dispense with an inquiry and further enables him to dismiss an employee, without assigning any reason for the same, by merely stating, that doing so would not be expedient, and that it would be against the interests of the industry, to allow continuation of employment with respect to the employee. This is primarily because, such a procedure is violative of the basic requirements of natural justice. Such power would tantamount to a blatant adoption of the “hire and fire” rule. 30. Where the actions of an employer bear public character and contain an element of public interest, as regards the offers made by him, including the terms and conditions mentioned in an appropriate table, which invite the public to enter into contract, such a matter does not relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable contract, or an unfair or unreasonable clause in a contract, that has been entered into by parties who do not enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where such a condition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the contracting parties, the aforesaid principle would automatically apply for the reason that, freedom of contract must be founded on the basis of equality of bargaining power between such contracting parties, and even though ad idem is assumed, applicability of standard form of contract is the rule. Consent or consensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional conditions in statutory rules/regulations vis-à-vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and conditions. (Vide: Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 ; D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 ; K.C. Sharma v. Delhi Stock Exchange and others, AIR 2005 SC 2884 ; and Punjab National Bank by Chairman and another v. Astamija Dash, AIR 2008 SC 3182 ). 40. Undoubtedly, the High Court has not dealt with the issue on merits with respect to the termination of the services of the respondents herein. However, considering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending not only before the High Court, but also before this Court, it is desirable that the dispute come to quietus. Therefore, we have dealt with the case on merits. However, considering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending not only before the High Court, but also before this Court, it is desirable that the dispute come to quietus. Therefore, we have dealt with the case on merits. In keeping with this, we cannot approve the “hire and fire” policy adopted by the appellant company, and the terms and conditions incorporated in the Manual of Officers in 1976, cannot be held to be justifiable, and the same being arbitrary, cannot be enforced. In such a fact-situation, clause 11 of the appointment letter is held to be an unconscionable clause, and thus the Service Condition Rules are held to be violative of Article 14 of the Constitution to this extent. The contract of employment is also held to be void to such extent. 41. The dictionary meaning of the word “unconscionable” is : “76. showing no regard for conscience; irreconcilable with what is right or reasonable.” 29. In the case of Pankaj Kumar Dubey (Supra) the Punjab National Bank was the respondent and in that case also no documents regarding the advertisement, circular was filed before the Court, which clearly shows that the officials of the bank are not acting as per their own circulars but on the whims of fancies of the officials. 30. For the facts and circumstances stated herein above, the impugned order dated 23.3.20111 passed by the Assistant General Manager, Punjab National Bank, Circle Office, Bulandsahar (Annexure 8A and 8B) to the writ petition is set aside. 31. The writ petition is allowed with all consequential benefits. 32. The bank has mislead the Court by filing contradictory affidavits and deliberate endeavor was made by the officials to mislead the Court by not to disclosing the correct facts, cost of Rs. 25,000/- shall payable to each of the petitioners by the respondents-bank within a period of one month from the date of production of certified copy of this order. —————