Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 717 (ORI)

Chittaranjan Tripathy v. Sambalpur University

2014-10-30

B.R.SARANGI

body2014
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who was working as Manager of Guest House of Sambalpur University, challenges the inquiry report of the inquiring officer dated 26.4.2000 and the consequential order dated 31.8.2000 passed by the disciplinary authority imposing on him punishment of dismissal from service vide Annexure-15 dated 31.8.2000 and confirmation thereof by the appellate authority, vide order dated 19.12.2000, Annexure-17. 2.The facts of the case in hand are that the petitioner entered into service as a Care Taker of the Guest House of Sambalpur University in the year 1982. Subsequently, he was promoted to the post of Manager in the year 1997. Pursuant to a news item published in Oriya dailies dated 10.6.1998 and 11.6.1998 relating to an ugly incident that took place on 19.5.1998 at University Guest House, the Registrar of the University directed the Officer-in-Charge of the Guest House to conduct an inquiry and submit his report. As a consequence thereof, the Officer-in-charge of the Guest House called for a report from the Manager of the Guest House and submitted the same to the Registrar of the University. Thereafter, the Revenue Divisional Commissioner (Northern Division), Sambalpur and the Vice-Chancellor of the University directed a detailed inquiry relating to the incident, by one Mr. P. Patra, A.D.M.-cum-Administrative Officer, VSS Medical College, Burla. During inquiry, statements of 13 persons were recorded on solemn affirmation and 32 documents were exhibited. Pursuant to the inquiry report, proceedings were initiated against the petitioner as also three others, namely, Dr. Satya Narayan Pradhan, Sr. Lecturer, Department of Earth Science, U.K. Panigrahi, Technician, P.G. Department of Earth Science of Sambalpur University and S.C. Paramguru, Khansama of University Guest House, Sambalpur and the following charges were framed against the petitioner vide Annexure-2 dated 23.7.1998. “(a) Abatement of moral turpitude; (b)Gross abuse of University Guest House by allowing indecent behaviour and thus criminal dereliction of duty. Lecturer, Department of Earth Science, U.K. Panigrahi, Technician, P.G. Department of Earth Science of Sambalpur University and S.C. Paramguru, Khansama of University Guest House, Sambalpur and the following charges were framed against the petitioner vide Annexure-2 dated 23.7.1998. “(a) Abatement of moral turpitude; (b)Gross abuse of University Guest House by allowing indecent behaviour and thus criminal dereliction of duty. (c)Allowing persons to occupy the Guest House without authority; (d)Allowing women to enter into the Guest House in the night with mala fide intention; (e)Not reporting the incident on 19.5.1998 to the authority concerned, superior to him.” The petitioner was called upon to explain as to why he should not be suitably punished under Chapter XIV, Part VI of the Orissa University Statutes, 1990 read with Orissa Civil Services (Classification, Control & Appeal) Rules, 1962, in short, “1962 Rules” within 30 days, failing action as deemed proper would be taken against him presuming that he had nothing to explain. A memorandum of charges along with statement of allegations was served on the petitioner to which he submitted his explanation, vide Annexure-6 dated 7.8.1998. In his explanation, the petitioner had taken categorical stand that he was not supplied copies of the statements of 13 persons examined as witnesses or the documents referred to in the so-called inquiry report of Sri Patra, A.D.M.-cum-Administrative Officer, VSS Medical College, Burla and, therefore, due to non-compliance with the principles of natural justice, the proceeding itself was vitiated. Even though the petitioner made a demand for supply of copies of documents including statements of 13 persons examined by Sri P. Patra, the same went unheeded. In the inquiry four persons were examined as witnesses, namely, tribikram Mishra, Officer-in-charge of the Guest House as P.W.1, Sunanda Mohanty, Lecturer of B.Ed. College, Sambalpur, as P.W.2, Chakradhar Biswal, Lecturer of B.Ed. College, Sambalpur as P.W.3, and one Purusottam Patra as P.W.4, who were no way connected with the alleged incident. However, P.W.1, Tribikram Mishra being the Officer in-charge of the Guest House examined as a witness, who was neither present in the Guest House at the relevant point of time nor was he any way connected with the occurrence alleged. On the basis of such perfunctory inquiry, the disciplinary authority finding the petitioner guilty of the charges imposed major penalty of dismissal from service on the petitioner vide order dated 31.8.2000 in Annexure-15. On the basis of such perfunctory inquiry, the disciplinary authority finding the petitioner guilty of the charges imposed major penalty of dismissal from service on the petitioner vide order dated 31.8.2000 in Annexure-15. The appellate authority confirmed such order passed by the disciplinary authority vide Annexure-16. Hence, the present writ application. 3.Mr. R.K. Rath, learned Senor Counsel for the petitioner, strenuously urged that the entire inquiry proceeding was vitiated due to non-compliance with the principles of natural justice, more particularly non-supply of the documents asked for by the petitioner as well as non-examination of material witnesses and above all non-supply of the inquiry report. He further submitted that the harshest punishment i.e., dismissal from service, imposed by the disciplinary authority, confirmed by the appellate authority being contrary to the provisions contained in Rule 15 of the 1962 Rules, the same is liable to be quashed. To substantiate the allegation as to non-supply of documents, Mr. Rath has relied upon the judgments of the apex Court in Kashinath Dikshita v. Union of India and others, AIR 1986 SC 2118 , The State of Punjab v. Bhagat Ram, AIR 1974 SC 2335 , State of U.P. and others v. Saroj Kumar Sinha, AIR 2010 SC 3131 and Narayan Patnaik v. State of Orissa and others, 2009 (I) OLR 971 . So far as non-examination of material witnesses, reliance has been placed on Ministry of Finance and another v. S.B. Ramesh, AIR 1998 SC 853 , Rajiv Arora v. Union of India and others, (2008) 15 SCC 306 , Hardwari Lal v. State of U.P. and others, AIR 2000 SC 277 . So far as non-supply of inquiry report, reliance has been placed on Punjab National Bank and others v. K.K. Verma, AIR 2011 SC 120 , Union of India and others v. Mohd. Ramzan Khan, AIR 1991 SC 471 , Punjab National Bank and others v. Kunj Behari Misra, AIR 1998 SC 2713 , Yoginath D. Bagde v. State of Maharashtra and another, AIR 1999 SC 3734 . 4.Mr. B.K. Behuria, learned Sr. Ramzan Khan, AIR 1991 SC 471 , Punjab National Bank and others v. Kunj Behari Misra, AIR 1998 SC 2713 , Yoginath D. Bagde v. State of Maharashtra and another, AIR 1999 SC 3734 . 4.Mr. B.K. Behuria, learned Sr. Counsel for the University, refuting the allegations made by the learned Senior Counsel for the petitioner, argued that there was compliance with principles of natural justice by supplying the documents, examining the material witnesses and as such no prejudice was caused to the delinquent and therefore, this Court may not interfere with the impugned orders and this being a case of moral turpitude, the Court may be very cautious to pass orders on the basis of the materials available on record. To substantiate his case, he has relied upon the judgments of the apex Court in State Bank of Patiala and others v. S.K. Sharma, AIR 1996 SC 1669 , Sate of U.P. and others v. Ramesh Ch. Mangalik, AIR 2002 SC 1241 , Vijay Kumar Nigam (dead) etc. v. State of M.P. and others, AIR 1997 SC 1358 , S.K. Singh v. Central Bank of India and others, (1996) 6 SCC 415 , State of U.P. v. Harendra Arora, AIR 2001 SC 2319 , Sarva U.P. Gramin Bank v. Manoj Kumar Sinha, (2010) 3 SCC 556 , Orissa Mining Corporation and another v. Ananda Ch. Prusty, (1996) 11 SCC 600 and Hira Nath Mishra and others v. The Principal, Rajendra Medical College, Ranchi and others, AIR 1973 SC 1260 . 5.After hearing the learned counsel for the parties and going through the records, this Court proposes to deal with the case on the basis of the allegations made, materials available on record and the law governing the field. (i)Non-supply of documents. On perusal of the charge served on the petitioner vide Annexure-2 dated 23.7.1998, reliance has been placed on the statement of allegations. As it appears, two sets of inquiry were conducted at different points of time, one on publication of the news item in Oriya Dailies on 16.6.1998 and the other, the Registrar of the University directing the Officer-in-Charge of the Guest House on 11.6.1998 to submit his report. Instead of conducting a detailed inquiry himself, the Officer-in-Charge called a report of the Manager of the Guest House and forwarded the same to the Registrar. This was the first stage of the inquiry conducted. Instead of conducting a detailed inquiry himself, the Officer-in-Charge called a report of the Manager of the Guest House and forwarded the same to the Registrar. This was the first stage of the inquiry conducted. Subsequently, the said report having been submitted by the Officer-in-Charge of the Guest House, the Revenue Divisional Commissioner (Northern Division), Sambalpur and Vice-Chancellor of the University ordered a detailed inquiry, which was entrusted to Sri P. Patra, A.D.M.-cum-Administrative Officer, VSS Medical College, Burla. This was the second inquiry conducted by Sri P. Patra, who took into account the statements of 13 persons recorded on solemn affirmation and 32 documents, Annexures-A & B to his inquiry report. Thus, there were two inquiries, one conducted by the Officer-in-Charge of the Guest House and the subsequent inquiry by Sri P. Patra. In the second inquiry, Mr. Patra relying upon the statements of 13 persons recorded by him on solemn affirmation and examining 32 documents, submitted his report to the disciplinary authority, but the petitioner was not supplied copy thereof. The petitioner has specifically urged that above contention in paragraph 4 of the writ application, which the opposite parties have not denied. Even after receipt of the charge-sheet along with the statements, the petitioner made an application, vide Annexure-3 on 19.8.1998 to the Registrar of the University requesting for supply of copies of relevant documents, but neither any reply was given nor was any document was supplied to him. Again the petitioner requested the Vice-Chancellor on 22.8.1998 vide Annexure-4, but on the very day, i.e. on 22.8.1998, the petitioner was communicated vide Annexure-5 that the relevant documents were kept hidden from the petitioner though the entire charges were based upon the same, as a consequence whereof, the petitioner was called upon to meet the allegations having not been supplied with copies of the relevant documents to him. As such, the specific averments made in paragraphs 4 and 5 of the writ application have not been answered specifically in the counter affidavit filed by the opposite parties. 6.The basic principle of law is that whenever after conclusion of the disciplinary proceeding, a report is prepared by the inquiring officer, it should be communicated to the delinquent employee to obtain his views in regard to the very acceptability of the inquiry report. 6.The basic principle of law is that whenever after conclusion of the disciplinary proceeding, a report is prepared by the inquiring officer, it should be communicated to the delinquent employee to obtain his views in regard to the very acceptability of the inquiry report. But in the present case, the report of the inquiring officer was accepted, penalty was proposed and the report was submitted to the disciplinary authority and thus, the entire exercise was contrary to the provisions of law. 7.The State Legislature enacted an Act to consolidate and amend laws relating to certain Universities called “Orissa Universities Act, 1989”. Section 24 of the said Act deals with Statute. Sub-section (k) of Section 24 empowers to frame Rules to regulate the conduct of the University employees. ‘Statute’ has also been defined under Sub-section (m) of Section 2, means, Statute of the concerned University made under the Act. In view of such provisions, the Universities First Statute, 1990 has come into existence. Statute 299 of the Universities First Statute, 1990 states as follows : “299. Application of Government Rules- Rules 112, 15 and 16 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 as amended from time to time and the Government clarification issued thereunder in the matter of suspension and for imposing major and minor penalties, shall apply mutatis mutandis to all employees.” 8.The above mentioned provision clearly indicates that the 1962 Rules is applicable to regulate the conduct of the employees of the University. So far as imposition of penalty is concerned, dismissal from service is a major penalty as defined under sub-rule (ix) of 13 of the 1962 Rules. Rule 15 of the 1962 Rules lays down the procedure for imposition of major penalty, which reads as follows : “15. Procedure for imposing Major Penalties - (1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. (2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. (2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month, a written statement of his defence and also to state whether he desires to be heard in person. Explanation - In this sub-rule and in Sub-rule (3), the expression, ‘disciplinary authority’ shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in Clauses (i) to (v) of Rule 13. (3) The Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against public interest to allow him access thereto. (4) On receipt of the written statement of defence or, if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a Board of Inquiry or an inquiring officer for the purpose. Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the case do not justify the award of a major penalty, it shall determine, after recording reasons thereof, what other penalty or penalties, if any, as specified in Clauses (i) to (v) of Rule 13 should be imposed and shall after consulting the Commission where such consultation is necessary, pass appropriate order. (5) The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the ‘inquiring authority’). The Government servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, is a legal practitioner. The Government servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, is a legal practitioner. The inquiring authority may also, having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner. (6) The inquiring authority, shall, in the course of the inquiry consider such documentary evidence, and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witness examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witness examined in his defence. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing. (7) At the conclusion of the inquiry, the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may recommend the punishment to be inflicted when the charges are established on the findings. (8) The record of the inquiry shall include - (i)the charges framed against the Government servant and the statement of allegations furnished to him under Sub-rule (2); (ii)his written statement of defence, if any; (iii)the oral evidence taken in the course of the inquiry; (iv)the documentary evidence considered in the course of the inquiry; (v)the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry; (vi)a report setting out the findings on each charge and the reasons therefore; and (vii)the recommendations of the inquiring authority, if any, regarding the punishment to be inflicted, (9) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. (10) (i) (a) If the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him a notice by registered post or otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against the findings of the Inquiring Authority. (b)On receipt of the representation referred to in sub-clause (a) if the disciplinary authority having regard to the findings on the charges, is of the opinion that any of the penalties specified in clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty : Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989, the record of inquiry together with copies of the notices given under sub-clauses (a) and (b) and the representations, if any, received in response thereto within the specified time shall be forwarded by the disciplinary authority to the Commission for its advice.] (c)On receipt of the advice from the Commission the disciplinary authority shall consider the representation, if any, made by the Government servant and the advice given by the Commission and shall pass appropriate orders in the case. (d)In any case in which it is not necessary to consult the Orissa Public Service Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in response to the notice under sub-clause (b) and pass appropriate orders in the case. (d)In any case in which it is not necessary to consult the Orissa Public Service Commission, the disciplinary authority shall consider the representation, if any, made by the Government servant in response to the notice under sub-clause (b) and pass appropriate orders in the case. (ii)The orders passed by the disciplinary authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the inquiring authority and where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority, as well as a copy of the advice of the Commission, where the Commission has been consulted, and brief statement of reasons for non-acceptance of the advice of the Commission, if the disciplinary authority has not accepted such advice.” 9.Sub-rule (1) of Rule 15 puts a mandate that before imposition of penalties specified in Clause (vi) to (ix) of Rule 13, inquiry has to be conducted in the manner provided under the aforesaid 1962 Rules. Sub-rule (2) to Rule 15 mandates the disciplinary authority to frame definite charges on the basis of the allegations on which inquiry is to be held and such charges together with the statement of the allegations on which they are based, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month, a written statement of his defence, and also to state whether he desires to be heard in person. For the purpose of preparing his defence, the delinquent is to be supplied with all the records on which allegations are based. That apart, he is also required to be permitted to inspect and take extracts from such other official records as he may specify. In the event of refusal thereof, reasons to be recorded in writing and also communicated to the delinquent and on receipt of his written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges in accordance with the provisions of law. In the event of refusal thereof, reasons to be recorded in writing and also communicated to the delinquent and on receipt of his written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges in accordance with the provisions of law. 10.Considering the above mentioned provisions, it appears that charges had been framed as per Annexure-2, the statements of allegations though had a reference with regard to the inquiry conducted by two separate authorities, namely, Officer-in-Charge of the Guest House and Sri P. Patra, A.D.M.-cum-Administrative Officer, VSS Medical College, Burla, who had recorded the statements of 13 persons on solemn affirmation as per Annexure-A and relied upon 32 nos. of documents as per the list in Annexure-B to the said report. The documents were not supplied to the petitioner even though the petitioner had asked for the same subsequently vide Annexures-3 and 4 and no reply was also given to him. Therefore, this was a clear case of non-supply of documents to the petitioner in a disciplinary proceeding. 11.In Kashinath Dikshita (supra) in paragraph 12, the apex Court held as follows :- “The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be give an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. X x x x” 12.The meaning of “reasonable opportunity” has been dealt with in the State of Punjab v. Bhagat Ram (supra), wherein the apex Court in paragraph 7 has held as follows : “7. The meaning of reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. X x x x” 13.The decision in Kashinath Dikshita case (supra), which has also been followed in State of U.P. v. Saroj Kumar Sinha case (supra), the apex Court in para 36 has held as follows : “36. The prosecution of law that a government employee facing a departmental inquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental inquiry against the charges is too well established to need any further reiteration. X x x x x” 14.Similar view has also been taken in Narayan Patnaik case (supra), wherein this Court has relied upon Ministry of Finance and another v. S.B. Ramesh case (supra), Kashinath Dikshita (supra) and Union of India and others v. Naman Singh Shekhawat, (2008) 4 SCC 1 and has come to a definite finding that failure on the part of the employer to provide the copy of the inquiry report to the delinquent petitioner clearly vitiates the proceeding resulting the punishment in the proceeding unlawful. 15.In the decisions referred to by Mr. B.K. Behuria, learned Sr. Counsel for the opposite parties, in State Bank of Patiala and others v. S.K. Sharma (supra), principles have been evolved by the apex Court with regard to the applicability of the principles of natural justice in the context of disciplinary proceeding and orders of punishment imposed by the employer upon the employee. The said principles have been enumerated in para 32 of the said judgment, which are as follows : “32. We may summarize the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) : (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental inquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the inquiry held or order passed. Except cases falling under ‘no notice’, ‘no opportunity’ and ‘no hearing’ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the inquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be give an opportunity to lead defence in his evidence, and in a given case, the inquiring officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle state under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle state under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b)In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. It he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the prevision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the inquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and not adequate opportunity, i.e., between “no notice”/ “no hearing” and “no fair hearing.” (a) In the case of former, the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No.5) does not apply in the case of rule against bias, he test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where he interest of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.” 16.The reliance place on the decisions in State of U.P. and others v. Ramesh Ramesh Ch. Mangalik cas (supra), Vijay Kumar Nigam (dead) v. State of M.P. and others case (supra), S.K. Singh case (supra) by the learned Senior counsel for the opposite parties has no application to the present context. On the other hand, the judgment relied upon by him in Sarva U.P. Gramin Bank case (supra) is applicable to the extent that prejudice was caused to the petitioner due to non-supply of the documents and the materials relied upon by the opposite parties had not been supplied by him even though asked for. On the other hand, the judgment relied upon by him in Sarva U.P. Gramin Bank case (supra) is applicable to the extent that prejudice was caused to the petitioner due to non-supply of the documents and the materials relied upon by the opposite parties had not been supplied by him even though asked for. The decision in State Bank of Patiala (supra) and Sarva U.P. Gramin Bank case (supra) relied upon by the opposite parties is squarely applicable to the case of the petitioner and goes against the opposite parties. Therefore, taking the above facts and circumstances into consideration, this Court has no hesitation to come to the conclusion that the opposite parties had denied reasonable opportunity to the petitioner to defend himself in the inquiry. (ii)Non-examination of material witnesses So far as the question of non-examination of material witnesses is concerned, the petitioner in paragraphs 19 and 20 of the writ application has specifically pleaded that neither any girl had been examined in the proceeding nor her identity had ever been disclosed and more particularly, the matter had never been reported to the police for inquiry. If police investigation would have been made, at least the truth of the matter could be unearthed. More so, on the date of occurrence, one D.K. Routray and one D.D. Das, Government Auditors were staying in the Guest House and they along with Kamru Shal, Cook of the Guest House, Satish Chandra Paramaguru, Khansama of the Guest House were allegedly witnesses to the occurrence, but none of them was produced as witness and as such, it was a case of non evidence or an issue on baseless fact. The inquiry having been conducted in a perfunctory manner without following due procedure of law, the petitioner was highly prejudiced. In the inquiry proceeding, the four witnesses examined, namely, Tribikram Mishra, Sunanda Mohanty, Chakradhar Biswal and Purusottam Patra, were no way connected with the so-called incident and none of them was a witness to the alleged occurrence. More so, the persons named as witnesses to the occurrence, were not examined in the inquiry proceeding. Sri Tribikram Mishra, Officer-in-Charge of the Guest House, admittedly, as per the contention of the prosecution was neither present at the spot nor was a witness to the occurrence. More so, he was no way connected with the alleged incident in any manner. Mr. D.K. Routray and Mr. Sri Tribikram Mishra, Officer-in-Charge of the Guest House, admittedly, as per the contention of the prosecution was neither present at the spot nor was a witness to the occurrence. More so, he was no way connected with the alleged incident in any manner. Mr. D.K. Routray and Mr. D.D. Das, Government Auditors, who were staying in the Guest House n the relevant date, have not been examined. Therefore, the inevitable conclusion can be drawn that while material witnesses were not examined by the opposite parties, the petitioner has been visited with a major penalty like dismissal from service without any evidence substantiating the allegation against him. Such contention raised by the petitioner in paragraphs 19 and 20 of the writ application have not been denied in the counter affidavit filed by the opposite parties. 17.Non-examination of material witnesses also vitiated the disciplinary proceeding. Reliance has been placed on C. Kasinath Gowda case (supra), Rajib Arora case (supra), Hardwari Lal case (supra), which lays down the principles that non-examination of material witnesses also vitiates the proceeding and the same has also been considered by this Court in Narayan Patnaik case (supra). (iii)Non-supply of inquiry report As it appears from the record that before the charge-sheet was issued, two inquiries were already conducted, one by Officer-in-Charge of the Guest House and the other by Mr. P. Patra, A.D.M.-cum-Administrative Officer, VSS Medical College, Burla. While conducting inquiry, Sri. P. Patra recorded the statements of 13 persons and relied upon 32 documents basing upon which charges were framed and those materials were referred to as Annexures-A & B to the inquiry report by Sri P. Patra. If relying upon such documents and statements of witnesses charges had been framed against the petitioner, the petitioner was entitled to know the materials forming the basis of charge against him, so that he could meet the same effectively. At the time of framing of charge, though in the statement of allegations, reliance was placed; those materials were never supplied to the petitioner. Therefore, the entire inquiry was vitiated in law because copies of the inquiry reports of the Officer-in-Charge of the Guest House as well as Sri P. Patra had not been supplied to the petitioner. Even though the petitioner asked for the same, the same went unheeded. Therefore, the entire inquiry was vitiated in law because copies of the inquiry reports of the Officer-in-Charge of the Guest House as well as Sri P. Patra had not been supplied to the petitioner. Even though the petitioner asked for the same, the same went unheeded. Therefore, without supplying the material documents on the basis of which charges were framed, harshest punishment having been imposed, the same was contrary to Rule 15 of the 1962 Rules, and the proceeding was vitiated in law. 18.So far as non-supply of the inquiry report, reliance has been placed on Mohd. Ramzan Khan case (supra), which has also been taken into consideration in the subsequent judgment, wherein the apex Court has held that the right to represent against the findings in the inquiry report one’s innocence is distinct from the right to represent against the proposed penalty and the right to represent against the findings in the report is not disturbed in any way. In fact any denial thereof will make the final order vulnerable. Such finding has been arrived at in view of the fact that right to represent against the findings in the inquiry report to prove once innocence is distinct from the right to represent against the proposed penalty. Therefore, by virtue of the amendment in Rule 15 (10)(a) & (b) on 25.2.2000, it was obligatory to follow the procedure by supplying the inquiry report and obtaining representation of the delinquent and then to take a decision finally on the same. 19.In Punjab National Bank v. Kunj Behari Misra case (supra), the apex Court in paragraph 17 held as follows : “x x x The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. X x x” 20.In Yoginath D. Bagde case (supra) in para 30 reference has also been made to Kunj Behari Mishra case (supra). X x x” 20.In Yoginath D. Bagde case (supra) in para 30 reference has also been made to Kunj Behari Mishra case (supra). Considering the facts and the law applicable to the present context, the conclusion is inevitable that the punishment imposed by the disciplinary authority was vitiated due to non-compliance with the principles of natural justice, more particularly due to non-supply of the documents, non-examination of material witnesses and non-supply of the inquiry report to the delinquent officer, namely, the petitioner herein. 21.For the foregoing reasons and keeping in view the law laid down by the apex Court, this Court holds that the order of punishment imposed by the disciplinary authority vide order dated 31.08.2000 (Annexure-15) and confirmation thereof made by the appellate authority vide order dated 19.12.2000 (Annexre-17) are vitiated. Accordingly, the same are quashed. The opposite parties are directed to reinstate the petitioner in service forthwith and all the consequential financial and service benefits as due and admissible to him be granted within a period of three months from the date of receipt of a copy of this judgment. 22.The writ application is thus allowed. Application allowed.