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2015 DIGILAW 150 (GAU)

Utpal Rajkonwar v. Dibrugarh University & Ors.

2015-02-09

UJJAL BHUYAN

body2015
1. WP(C) No. 1750, 2406 and 3051 of 2005, being interrelated were taken up together and are being disposed of by this common order. 2. A brief recital of the facts is considered necessary. 3. In WP(C) No. 1750 of 2005, Sri Utpal Rajkonwar is the petitioner. At the relevant point of time, he was serving as a Deputy Registrar (F&A) in the Dibrugarh University. 4. In WP(C) No. 2406 of 2005, petitioner is Sri Lachit Borthakur, who was a Lower Division Assistant (LDA) in the Finance and Accounts Branch (A), Dibrugarh University. 5. In the last case, WP(C) No. 3051 of 2005, Sri Rakhal Chandra Deb is the petitioner, who was serving as section Officer in the Dibrugarh University at the relevant point of time. 6. All the 3 petitioners were subjected to a departmental proceeding. The charges framed against the petitioners, though identical, may be enumerated separately. In the case of Sri Utpal Rajkonwar, the following were the charges framed against him: “That while you were holding the post of Deputy Registrar (Finance & Accounts) of Dibrugarh University during the period from 1999-03 you failed to attend to your duties as specified by competent authority and thereby you allowed willful and fraudulent excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials apparently in connivance and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and to M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 2. That while you were holding the post of Deputy Registrar (Finance & Accounts) of Dibrugarh University during the period from 1999-03, you failed to maintain absolute integrity, honesty and devotion to duty and as a matter of fact you allowed willful and fraudulent excess payment of at least Rs. 30,08,745 to M/s Padmini Printing Press, Dibrugarh, against the supply of printing materials and as a matter of fact caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and to M/s. Padmini Printing Press, Dibrugarh and thereby you committed gross misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 3. 3. That while you were holding the post of Deputy Registrar (Finance & Accounts) of Dibrugarh University during the period from 1999-03 you committed forgery and falsification of accounts either yourself or through your accomplice in connivance and conspiracy with M/s Padmini Printing Press, Dibrugarh with a view to cheating and defrauding the Dibrugarh University to the tune of Rs. 31,65,635 and as a matter of fact you succeeded to cheat and defraud the Dibrugarh University to the tune of Rs. 30,08,745 causing wrongful loss to the Dibrugarh University to the aforesaid extent and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh to the aforesaid extent. Your above illegal acts are nothing but gross misconduct on your part committed while discharging your duties and responsibilities as Deputy Registrar (F&A) within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 4. That while you were holding the post of Deputy Registrar (Finance & Accounts) of Dibrugarh University during the period from 1999-03 you failed to sincerely and regularly perfom your official duties and thereby in connivance with others including M/s. Padmini Printing Press, Dibrugarh, you allowed willful and fraudulent payment in excess of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, against the supply of printing materials by forging and interpolating the supply orders, the challans, the bills, etc., and gave effect to the payment without taking clearance from the Internal Auditor and without obtaining proper receipts as required and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 5. That while you were holding the post of Deputy Registrar (Finance and Accounts) of Dibrugarh University during the period from 1999-03 you failed to strictly follow the rules of the Dibrugarh University relating to the financial matters and thereby you allowed willful and fraudulent payment of at least Rs. 5. That while you were holding the post of Deputy Registrar (Finance and Accounts) of Dibrugarh University during the period from 1999-03 you failed to strictly follow the rules of the Dibrugarh University relating to the financial matters and thereby you allowed willful and fraudulent payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby yovi committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000." 7. In the case of Sri Lachit Borthakur, the following were the charges framed against him: “That while you were posted as Lower Division Assistant in the Finance & Accounts Branch (A), DU and entrusted to deal with the processing of printing bills during the period from 2000-03 (till 10.3.2003), you failed to attend to your duties as specified by competent authority and thereby you became privy to the willful and fraudulent drawal of excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, against the printing bills and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 2. That while you were posted as Lower Division Assistant in the Finance & Accounts Branch (A), D.U. during the period from 2000-03, you failed to maintain absolute integrity, honesty and devotion to duty and thereby you became privy to the willful and fraudulent drawal of excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, in the process of handing over of the cheques issued against claims for the payments of bills for the supply of printing materials by M/s. Padmini Printing Press, Dibrugarh and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed gross misconduct within the meaning of article 34(i) and (ii) read with article 34 (x) of the Ordinance, 2000. 3. 3. That while you were posted as Lower Division Assistant in the Finance & Accounts Branch (A), D.U., you committed forgery and falsification of accounts either yourself or through your accomplice(s) in connivance and conspiracy with M/s. Padmini Printing Press, Dibrugarh with a view to cheating and defrauding the Dibrugarh University to the tune of Rs. 31,65,635 and thereby you succeeded to cheat and defraud the Dibrugarh University to the tune of Rs. 30,08,745 causing wrongful loss to the Dibrugarh University to the aforesaid extent and wrongful gain to yourself and to others including M/s. Padmini Printing Press, Dibrugarh, to the aforesaid extent. Your above illegal acts are nothing but gross misconduct on your part committed while discharging your duties and responsibilities as the Lower Division Assistant in the Finance & Accounts Branch (A), D.U. within the meaning of article 34(i) and 34(ii) read with article 34 (x) of the Ordinance 2000. 4. That while you were posted as Lower Division Assistant in the Finance & Accounts Branch (A), D.U., you failed to sincerely and regularly perform your official duties and thereby in connivance with M/s. Padmini Printing Press, Dibrugarh, you became privy to the willful and fraudulent drawl of excess payment of at least Rs. 30,08, 745 to M/s. Padmini Printing Press, Dibrugarh against the wrongful claims for payment of printing bills by forging and interpolating the supply orders, tine challans and the bills etc. and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 5. That while you were posted as Lower Division Assistant in the Finance & Accounts Branch (A), D.U., you failed to strictly follow the rules of the Dibrugarh University relating to the processing for payment of bills and thereby you became a party to the willful and fraudulent payment in excess of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000.” 8. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000.” 8. In the case of Sri Rakhal Chandra Deb, the following were the charges framed against him: "That while you were posted as section Officer Examination Branch (B) of Dibrugarh University during the period from 2000-03, you failed to attend to your duties as specified by competent authority and thereby you became privy to willful and fraudulent drawal of excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, against the supply of printing materials and thereby caused wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 2. That while you were posted as section Officer, Examination Branch(B) of Dibrugarh University during the period from 2000-03, you failed to maintain absolute integrity, honesty and devotion to duty and thereby you became privy to willful and fraudulent drawal of excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/s. Padmini Printing Press, Dibrugarh and thereby you committed gross misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 3. That while you were posted as section Officer, Examination Branch (B) of Dibrugarh University during the period from 2000-03 you committed forgery and falsification of accounts either yourself or through your accomplice(s) in connivance and conspiracy with M/s. Padmini Printing Press, Dibrugarh, with a view to cheating and defrauding the Dibrugarh University to the tune of Rs. 31,65,635 and thereby you succeeded to cheat and defraud the Dibrugarh University to the tune of Rs. 30,08,745 causing wrongful loss to the Dibrugarh University to the aforesaid extent and wrongful gain to yourself and to others including M/s. Padmini Printing Press, Dibrugarh to the aforesaid extent. 31,65,635 and thereby you succeeded to cheat and defraud the Dibrugarh University to the tune of Rs. 30,08,745 causing wrongful loss to the Dibrugarh University to the aforesaid extent and wrongful gain to yourself and to others including M/s. Padmini Printing Press, Dibrugarh to the aforesaid extent. Your above illegal acts are nothing but gross miscond uct on your part committed while discharging your duties and responsibilities as the section Officer, Examination Branch(B) within the meaning of article 34(i) and 34 (ii) read with article 34(x) of the Ordinance, 2000. 4. That while you were posted as section Officer, Examination Branch (B) of Dibrugarh University during the period from 2000-03 you failed to sincerely and regularly perform your official duties and thereby in connivance with M/s. Padmini Printing Press, Dibrugarh, you became privy to willful and fraudulent drawal of excess payment of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh against the supply of printing materials by forging and interpolating the supply orders, the challans and the bills, etc., and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including M/ s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance, 2000. 5. That while you were posted as section Officer, Examination Branch(B) of Dibrugarh University during the period from 2000-03 you failed to strictly follow the rules of the Dibrugarh University relating to the processing in your branch of the financial and other matters and thereby you became a party to the willful and fraudulent payment in excess of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, against the supply of printing materials and thereby you became a party to the willful and fraudulent payment in excess of at least Rs. 30,08,745 to M/s. Padmini Printing Press, Dibrugarh, against the supply of printing materials and thereby caused wrongful loss to the Dibrugarh University and wrongful gain to yourself and others including to M/s. Padmini Printing Press, Dibrugarh and thereby you committed grave misconduct within the meaning of article 34(i) and (ii) read with article 34(x) of the Ordinance-2000.” 9. Petitioners submitted show-cause reply, which were not accepted by the Dibrugarh University authorities. Accordingly, decision was taken to hold enquiry. Petitioners submitted show-cause reply, which were not accepted by the Dibrugarh University authorities. Accordingly, decision was taken to hold enquiry. Notification dated 16.3.2003, was issued by the Registrar, Dibrugarh University, appointing a 3 members committee to enquire into the charges brought against the 3 petitioners as well as against Dr Kamaleswar Dutta, who was the Controller of Examinations of Dibr ugarh University at that time and against Sri Bhuban Chandra Phukan, (F&A) Branch, in the University. 10. The Enquiry Committee conducted the enquiry and, thereafter, submitted report dated 14.7.2004. The findings of the Enquiry Committee were as under: "(1) SHRI RAKHAL CHANDRA DEB: Charge Nos. 1,2,4 and 5 against him are proved. But Charge No. 3 is not proved. (2) DR. KAMALESWAR DUTTA: None of the charges against him are proved. (However, our observations in paragraphs 50.3, 50.5, 50.8 and 50.12 may be noted) (3) SHRI LACHIT BORTHAKUR: Charge Nos. 1,2,4 and 5 against him are proved. But Charge No. 3 is not proved. (4) SHRI UTPAL RAJKONWAR: Charge Nos. 1, 2,4 and 5 against him are proved. But Charge No. 3 is not proved. (5) SHRIBHUBAN CHANDRA PHUKAN: None of the charges against him are proved.” 11. By identical letters dated 15.10.2004, issued by the Registrar, Dibrugarh University, the 3 petitioners were separately informed that the findings of the Enquiry Committee were accepted by the Executive Council of Dibrugarh University on 2.8.2004, where-after, it was proposed to impose penalties on the respective petitioners. While in the case of Sri Utpal Rajkonwar and Sri Lachit Borthakur, the penalty of removal from service was proposed, in the case of Sri Rakhal Chandra Deb, the penalty of compulsory retirement was proposed. Petitioners were directed to show- cause against the proposed penalty within 3 weeks/failing which, it was stated that the proposed penalty would be imposed without any further notice. Copies of the enquiry report were also annexed to the letters. Petitioners submitted their respective representations before the Registrar, requesting the authority not to impose the penalty as proposed. 12. Thereafter, the penalties as indicated above were imposed on the petitioners vide separate orders dated 31.12.2004, issued by the Registrar, Dibrugarh University. 13. Aggrieved, the petitioners have filed the present writ petitions assailing the legality and validity of the penalty imposed. 14. 12. Thereafter, the penalties as indicated above were imposed on the petitioners vide separate orders dated 31.12.2004, issued by the Registrar, Dibrugarh University. 13. Aggrieved, the petitioners have filed the present writ petitions assailing the legality and validity of the penalty imposed. 14. Respondents have filed affidavit justifying the penalty imposed and have also stated that due procedure was followed while conducting the enquiry and in the imposition of penalty. Therefore, no interference is called for, 15. Heard Mr. P.K. Goswami, learned senior counsel for the petitioner in WP(C) No. 1750 of 2005, Mr. B.K. Bhattacharjee, learned counsel for the petitioner in WP(C) No. 2406 of 2005 and Mr. S. Dutta, learned senior counsel for the petitioner in WP(C) No. 3051 of 2005. Also heard Mr. N.C. Das, learned senior counsel appearing for the Dibrugarh University. 16. Mr. Bhattacharjee and Mr. Dutta, learned counsel for the petitioners submitted that the enquiry conducted suffered from gross procedural impropriety striking at the very root of the departmental proceedings and that the Registrar himself deposed as a witness in the enquiry which was a clear manifestation of biasness towards the petitioners. Findings were arrived at on the basis of surmises and conjectures and hence perverse. Entire proceedings were conducted in a manner so as to protect the interest of one of the officers of the University, who was charged along with the petitioners, but was ultimately given a clean chit. They have elaborately referred to the evidence adduced in the course of the enquiry in support of their submissions. A number of decisions have also been cited in support of their contentions. 17. Mr. P.K. Goswami, learned senior counsel, also appearing for one of the petitioners, on the other hand, submits that the findings in the enquiry report were accepted by the Disciplinary Authority, i.e., the Executive Council without furnishing a copy of the enquiry report to the petitioners and without considering their response. He submits that following the decision of the Apex Court in the case of the Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 , it has been made clear by the Apex Court that in a departmental proceeding, before taking a decision whether to accept the report of the Enquiry Officer or not, notice is to be given to the delinquent along with a copy of the enquiry report. Representation submitted by the delinquent on the enquiry report is required to be considered by the Disciplinary Authority along with the record of the enquiry. Only on due consideration, thereafter, decision is required to be taken whether to accept the enquiry report or not. Regarding the proposed penalty, he submits that once decision is taken to accept the enquiry report, it would not be necessary to issue further notice to the delinquent on the proposed penalty. Referring to the letters dated 15.10.2004, the learned senior counsel submits that the Executive Council, i.e., the Disciplinary Authority had accepted the findings of the Enquiry Committee and, thereafter, decided to impose the penalty on the petitioners. It was on the question of imposition of the proposed penalty that the notices were issued. Such a course of action was in violation of the law laid down by the Supreme Court in Managing Director, ECIL (supra), therefore, the same is required to be interfered with. He submits that the present is a fit case for remanding the matter back to the Disciplinary Authority for a fresh decision whether to accept the enquiry report or not after .considering the respective representations of the petitioners. Considering the long lapse of time, he further submits that the petitioners may be permitted or may be given an opportunity of personal hearing so that they can explain their defence before the Disciplinary Authority, without making it a precedent. He has referred to in details the judgments of the Apex Court in the cases of Union of India v. Md. Ramzan Khan; (1991) 1 SCC 588 & Managing Director, ECIL (supra). 18. On the other hand, Mr. N.C. Das, learned senior counsel appearing for the Dibrugarh University, submits that considering the conduct of the petitioners, the Disciplinary Authority was justified in initiating disciplinary proceeding against them. Petitioners had submitted written statements in defence and, thereafter, participated in the enquiry. They were given all opportunities to defend their cases in the enquiry. Referring to the letters dated 15.10.2004, learned senior counsel submits that issuance of second show-cause notice is no longer required in view of the 42nd amendment to the Constitution of India, which has already amended the provisions of article 311(2) of the Constitution. They were given all opportunities to defend their cases in the enquiry. Referring to the letters dated 15.10.2004, learned senior counsel submits that issuance of second show-cause notice is no longer required in view of the 42nd amendment to the Constitution of India, which has already amended the provisions of article 311(2) of the Constitution. Issuance of the letters dated 15.10.2004, therefore, would be sufficient compliance of the principles of the natural justice and no prejudice has been caused to the petitioners thereby. He submits that copies of the enquiry report were furnished to the petitioners along with the letters dated 15.10.2004 and their responses were considered by the authority before imposing the penalty. Penalty imposed cannot be said to be disproportionate. Hence, no interference is called for. In support of his submissions, learned Senior Counsel has placed reliance on the decision of the Apex Court in the case of A. Sudhakar v. Post Master General, (2006) 4 SCC 348 . 19. Submissions made have been considered. 20. Before adverting to other grounds of challenge, it would be apposite to first attend to the challenge made on the ground of non-furnishing of copy of the enquiry report to the petitioners before acceptance of the findings of the Enquiry Committee as any decision on this ground, one way or the other, would have a decisive bearing on the outcome of the present proceeding. 21. Article 311 of the Constitution deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State. Prior to the 42nd amendment of the Constitution, sub- article (2) of article 311 read as under: “311. (2) No such person as aforesaid shall 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 and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry." 22. Following the 42nd amendment made in the year 1976, sub-article (2) now reads as under: "311. Following the 42nd amendment made in the year 1976, sub-article (2) now reads as under: "311. (2) No such person as aforesaid shall 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: Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.” 23. Prior to the 1976 amendment, article 311(2) provided for opportunity of hearing at 2 stages, i.e., at the stage of enquiry into the charges and consequently before imposition of penalty on the basis of findings of the enquiry. The 1976 amendment eliminated the provision providing for second opportunity of hearing before imposition of punishment. 24. In Ramzan Khan (supra), the question, which fell for consideration before the Apex Court was whether after the 42nd amendment, the delinquent had lost his right to entitlement to a copy of the report of the [inquiry Officer in the disciplinary proceeding. The Apex Court, on due consideration took the view that deletion of the second part of issuing notice did not bring about any material change in regard to the requirement of furnishing a copy of the enquiry report to the delinquent. The hon'ble Supreme Court held as under: “15. Deletion of the second opportunity from the scheme of article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion Of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this court making rules of natural justice applicable to such an inquiry are not affected by the Forty-Second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position." 25. The question as to whether the enquiry report of the Enquiry Officer, who was appointed by the Disciplinary Authority to hold enquiry into the charges against the delinquent, was required to be furnished to the delinquent to enable him to make proper representation to the Disciplinary Authority before such authority arrives at its own final decision with regard to the guilt or otherwise of the delinquent and the consequent punishment proposed was referred to the Constitution Bench in Managing Director, ECIL (supra). Reference was made in view of what was thought to be conflicting decisions in Ramzan Khan (supra), and an earlier decision in the case of Kailash Chander Asthana v. State of U.P., (1988) 3 SCC 600 . The question, which was referred has since been authoritatively decided by the Constitution Bench in Managing Director, ECIL (supra). It has been held that right to receive the Enquiry Officer's report and to show-cause against the enquiry report was independent of the right to show-cause against the penalty proposed. Acknowledging that there was some confusion between the two rights, the Apex Court clarified that the right to receive the enquiry report and to represent against the findings recorded in it was inexplicably connected with the decision of the Disciplinary Authority and the nature of penalty proposed. Acknowledging that there was some confusion between the two rights, the Apex Court clarified that the right to receive the enquiry report and to represent against the findings recorded in it was inexplicably connected with the decision of the Disciplinary Authority and the nature of penalty proposed. Since the 42nd amendment dispensed with the requirement of issuance of notice against the penalty proposed, the Apex Court observed that some courts took the view that the delinquent was deprived of his right to represent against the finding of his guilt as well. The confusion was on account of the failure to distinguish the 2 rights, which were independent of each other. The Apex Court explained the distinction between the two stages and held as under: “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry, viz., before the disciplinary authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guil t of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. 26. The reason why the right to receive the report of the Enquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Enquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration, by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Enquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the-basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Enquiry Officer along with the evidence on record. In the circumstances, the findings of the Enquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Enquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Enquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Enquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Enquiry Officer and the representation of the employee against it. 27. It will, thus, be seen that where the Enquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The disciplinary authority is then required to consider the evidence, the report of the Enquiry Officer and the representation of the employee against it. 27. It will, thus, be seen that where the Enquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Enquiry Officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.” 26. Therefore, from a careful reading of the aforesaid decision of the Apex Court, it is clearly evident that before the Disciplinary Authority comes to its own conclusion whether to accept the enquiry report or not, the delinquent employee should have an opportunity to reply to the Enquiry Officer's findings. Thereafter, the Disciplinary Authority is required to consider the evidence on record, the report of the Enquiry Officer and the representation of the employee against the report of the Enquiry Officer. 27. Having noticed the legal position as above, we may now revert back to the letters dated 15.10.2004. A reading of the said letters would show that the findings of the three-members Enquiry Committee were accepted by the Executive Committee in its 265th special meeting held on 2.8.2004. Having accepted the findings of the Enquiry Committee it was then decided to impose the respective penalties on the petitioners. Petitioners were thereafter asked to show-cause against imposition of the proposed penalties and it was made clear that in the absence of their response the proposed penalties would be imposed without further notice. 28. Therefore, from the above, it would be abundantly clear that acceptance of the report of the Enquiry Committee preceded issuance of notice to the petitioners along with copies of the enquiry report. 'This is contrary to the law laid down in Managing Director, ECIL (supra). 28. Therefore, from the above, it would be abundantly clear that acceptance of the report of the Enquiry Committee preceded issuance of notice to the petitioners along with copies of the enquiry report. 'This is contrary to the law laid down in Managing Director, ECIL (supra). As a matter of fact, the Disciplinary Authority of the University issued show-cause notices to the petitioners on the proposed penalties, which was not required following the 42nd Amendment. 29. Learned senior counsel for the University has raised the issue of prejudice. During the hearing learned counsel for the petitioners had pointed out various discrepancies, which, according to them, had adversely affected the enquiry proceedings. It has been contended that had the petitioners been put on notice prior to taking a decision on the acceptance or otherwise of the enquiry report, petitioners could have persuaded the authority not to have accepted the report of the Enquiry Committee. Under such circumstances, it cannot, therefore, be said that non-furnishing of the enquiry report did not cause prejudice to the petitioners. 30. In view of the above, this court is of the clear opinion that the acceptance of the enquiry report by the Disciplinary Authority without putting the petitioners on notice and without considering their response had vitiated the decision so taken. It cannot be said that there was substantial compliance with the procedural requirement. Reliance placed on A. Sudhakar (supra) by the learned counsel for the respondents, therefore, appears to be misplaced. 31. Coming back to the submission made by Mr. Goswami, learned senior counsel for one of the petitioners, that petitioners may be personally heard by the Disciplinary Authority while taking a fresh decision on the findings of the Enquiry Committee, this court is of the view that such a course of action is not visualized either under the Rules of the University or in the decisions cited above explaining the provisions of article 311(2) of the Constitution post 42nd amendment. Therefore, it may not be justified to grant the petitioners a personal hearing before the Disciplinary Authority on remand. However, since more than 10 years have gone by from the date of imposition of penalty, it would be in the interest of justice if the petitioners are permitted to submit fresh representation(s), along with their earlier representations, if they so desire, before the Disciplinary Authority on the enquiry report. However, since more than 10 years have gone by from the date of imposition of penalty, it would be in the interest of justice if the petitioners are permitted to submit fresh representation(s), along with their earlier representations, if they so desire, before the Disciplinary Authority on the enquiry report. If such representations are submitted within 15th March, 2015, the same shall be considered by the Disciplinary Authority, who shall, thereafter, pass appropriate order(s), in accordance with law. 32. In view of the decision taken as above, it is considered not necessary to deliberate upon the other grounds urged at the hearing. 33. Consequently, the impugned orders of penalty dated 31.12.2004, are hereby set aside and quashed and the matters are remanded back to the Disciplinary Authority for a fresh decision in the light of the discussions made above. 34. Writ petitions are allowed. No cost. ....