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2024 DIGILAW 1047 (ALL)

Bijay Kumar Gupta v. Union of India

2024-04-12

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. This writ petition is directed against the order dated 30.12.2020 passed by the General Manager (P&C), Artificial Limbs Manufacturing Corporation of India (A Government of India Undertaking), Kanpur (for short, 'the ALIMCO Kanpur'), the Disciplinary Authority, ordering the petitioner's removal from service after holding a departmental inquiry. Also under challenge is the order dated 9.7.2021 passed by the Chairman-cum-Managing Director, ALIMCO Kanpur, the Appellate Authority, dismissing the petitioner's appeal and affirming the order passed by the Disciplinary Authority. The petitioner also does challenge the order dated 6.10.2022 passed on a review carried by him from the orders of the Appellate Authority and Disciplinary Authority to the Board of Directors of the ALIMCO Kanpur, rejecting it. The petitioner further questions the validity of the charge-sheet dated 19.12.2020, giving rise to the disciplinary proceedings, culminating in the orders impugned. 2. The facts giving rise to this writ petition are these: The ALIMCO Kanpur is a Government of India Central Public Sector Enterprise, working under the Ministry of Social Justice and Empowerment, with its major share holding being with the Central Government. It is administratively as well as financially controlled by the Government of India. The petitioner joined the ALIMCO Kanpur as an Engineer on 15.6.1999. He was promoted as a Deputy Manager on 28.1.2006 and then a Manager on 1.1.2012. On the 1st of April, 2015, he was promoted to the post of a Senior Manager. On the 8th of April, 2015, the petitioner was transferred from the ALIMCO Kanpur to the ALIMCO Auxiliary Production Centre, Jabalpur (for short, 'the AAPC Jabalpur') as the Unit Head. He joined at the AAPC Jabalpur on 15th April, 2015. The petitioner says that he achieved high for the ALIMCO and received the highest turnover award for the financial year 2015-16, 2016-17 and 2018-19. The AAPC Jabalpur received confirmation from the Director, Rajya Shiksha Kendra, Bhopal for organizing an assessment camp w.e.f. 4.12.2018 onwards in 131 blocks of 21 districts of Madhya Pradesh for children with special needs. 3. An assessment camp was conducted at Ujjain from 24.12.2018 to 1.1.2019 on schedule. After assessment, orders were placed with the ALIMCO for supply of appliances/materials, that include rollers, wheelchairs, CP chairs, tricycle and crutches for 131 blocks of 21 districts across Madhya Pradesh. These were meant for the use of children with special needs. 3. An assessment camp was conducted at Ujjain from 24.12.2018 to 1.1.2019 on schedule. After assessment, orders were placed with the ALIMCO for supply of appliances/materials, that include rollers, wheelchairs, CP chairs, tricycle and crutches for 131 blocks of 21 districts across Madhya Pradesh. These were meant for the use of children with special needs. The aforesaid appliances were supplied to Ujjain in various blocks, namely, Ujjain Gramin, Mahdipur, Ujjain, Ghatiya, Ujjain, Badnagar, after being checked and approved by the Quality Control Inspector, the Warehouse In-charge and the Security Personnel and signed by them on loading/packing slip. The petitioner was on station leave on 18.7.2017 and 19.7.2017 and one Nitin Manohar, the senior most officer after the petitioner, was working as the Unit Head/In-charge of the AAPC Jabalpur. It was under these circumstances that aids and appliances were dispatched to Ujjain, Khachrod and Badnagar blocks. 4. On 26.7.2019, a complaint was received from the District Project Coordinator, Ujjain saying that the appliances received in three blocks, to wit, Ujjain Gramin, Khachrod and Badnagar, were damaged and rusted. The aforesaid letter discloses that the appliances supplied, that were not found in proper condition requiring replacement, were a roller, a tricycle and CP chair. The petitioner says that the roller and the CP chair are manufactured at the AAPC Jabalpur, but received from the ALIMCO Kanpur. The petitioner, on re-joining his duties after his sanctioned leave was over, deputed Mohit Khanna, the Quality Control Officer to inspect all blocks of Ujjain and submit a report. Mohit Khanna duly inspected the supplied articles that were subject-matter of the complaint and submitted his report to the petitioner on 5.8.2019. It was noticed that in Ujjain Nagar and Ujjain Gramin, the rollers were not kept properly and due to their improper storage, powder coating had peeled off, leading to rusting. Khanna further noticed that TD 3B 60 brake rest was found damaged and the wheel assembly broken. He noticed that this may have been caused during transportation. The TD 2C 95 tricycle brake assembly and the seat assembly were found damaged. Also, TD 2C 98 brake assembly and front mudguard were found damaged. These damages to the parts noticed to certain articles were sustained during transportation. Further, in Block Madhipur, Ujjain, all the appliances were found to be in working condition. In Block Ghatiya, Ujjain all appliances were in proper condition. Also, TD 2C 98 brake assembly and front mudguard were found damaged. These damages to the parts noticed to certain articles were sustained during transportation. Further, in Block Madhipur, Ujjain, all the appliances were found to be in working condition. In Block Ghatiya, Ujjain all appliances were in proper condition. However, in Block Badnagar, defects in the rollers and tricycles were due to mishandling during transportation. No other defect was found in Block Tarana and Khachrod. 5. The petitioner asserts that one of the chief reasons for the deterioration of appliances as identified by the ALIMCO is because of the transportation lapses by the empanelled transporters. It is also the petitioner's case that as per Clause 8 of the General Price Index of the ALIMCO, the ALIMCO would replace the product/part of the component/remove the manufacturing defects within six months of supply. Any parts found defective shall be replaced free of charge. It is further averred on behalf of the petitioner that according to the agreement with the transporters vide Clause 9, transit damage/losses, non-delivery of consignment is to be borne by the transporters. It is emphasized in Paragraph No. 57 of the writ petition that the damaged appliances were a minuscule compared to the total numbers of the shipment dispatched by the Unit. The petitioner says that it reveals that the damage was less than 1%, to be precise 0.47% and 99.53% of the products received were in perfect condition. 6. In the aforesaid circumstances, the fact finding committee constituted at Kanpur, comprising three members, visited the AAPC Jabalpur on 8.8.2019 and submitted their report. It is emphasized on behalf of the petitioner that the committee did not visit Ujjain, the blocks where the complained articles were received and confined their appraisal to Jabalpur, where a workshop of the Unit is located. The committee found that rollers and CP chairs were kept in the open in a haphazard manner and have rust on them. The committee further visited manufacturing shops and observed that the material there was in rusted condition. The committee met Mohit Khanna, a hand hired through a Manpower Agency. They discussed matter with Mohit Khanna, who told them that the articles were dispatched after removal of defects to Ujjain. The committee further visited manufacturing shops and observed that the material there was in rusted condition. The committee met Mohit Khanna, a hand hired through a Manpower Agency. They discussed matter with Mohit Khanna, who told them that the articles were dispatched after removal of defects to Ujjain. The committee concluded that the dispatch of poor quality material to Ujjain by the AAPC Jabalpur under ADIP-SSA scheme is a matter of great concern, which tarnishes the image of the ALIMCO, and there seems to be deliberate lapse and negligence. 7. It was in the above background that the petitioner was charge-sheeted vide a memo 6.12.2019. The petitioner was charge-sheeted on a solitary article of charge i.e. annexed as Annexure 1 to the charge-sheet last mentioned: ''Article of Charge - I He has allowed dispatch of appliances/material in haste and without the explicit instructions from the receiving end and without ensuring that the appliances were in good condition and meet the standards of the Corporation before the same were despatched for Ujjain. Further, as Head of Unit, he also failed to ensure that the appliances are produced as per the quality standards of the Corporation and are stored in a proper, good and intact conditions. This has resulted in not only supply of defective and poor/substandard quality of appliances to be distributed to Divyang Children under Samagra Shiksha Abhiyan (SSA) Scheme of the Government of India but also put the reputation and credibility of the Corporation at stake. By his above acts, Sh. B.K. Gupta, SM-Head of Unit, AAPC, Jabalpur, has committed gross misconduct and he has also failed to maintain devotion to duty and has acted in a manner unbecoming of an employee of the Corporation. His acts were also prejudicial to the interests of the Corporation. He thereby contravened Rule 4(1) (ii) and (iii) and Rule 5(5) and (9) (a) and (b) of the ALIMCO Conduct, Disciplinary and Appeal Rules, 1975 as amended from time to time as applicable to ALIMCO Employees.'' 8. The petitioner filed a reply to the charge-sheet aforesaid (together with Annexures) dated 20.12.2019. The Inquiry Officer proceeded with the inquiry and submitted his report dated 19.12.2020. The petitioner filed a reply to the charge-sheet aforesaid (together with Annexures) dated 20.12.2019. The Inquiry Officer proceeded with the inquiry and submitted his report dated 19.12.2020. The petitioner's specific case pleaded in paragraph No. 44 of the writ petition is that a copy of the inquiry report was not supplied to him nor opportunity given to show-cause before the Disciplinary Authority passed orders, inflicting the major penalty of removal from service. The petitioner was supplied a copy of the inquiry report, annexed alongwith the order of the Disciplinary Authority, but not before it. It is pleaded that non-supply of the inquiry report before the Disciplinary Authority considered it and proceeded to award a major penalty, led to substantial prejudice to the petitioner. 9. The petitioner appealed the order of the Disciplinary Authority on 25.1.2021, but his appeal was dismissed by the Appellate Authority on 9.7.2021. The petitioner challenged the appellate order as well as the order inflicting penalty by filing a review under Rule 33 of the Conduct, Discipline and Appeal Rules on 25.10.2021. The review was not decided for a long time and the petitioner had to move this Court through Writ-A No. 10446 of 2022 complaining of the delay. This Court directed a decision of the review by a speaking order within two months of the date of production of a certified copy of the order dated 21.7.2022 passed by this Court. The review was decided vide order dated 6.10.2022, rejecting the petitioner's plea. 10. Aggrieved by the orders passed by the Disciplinary Authority, the Appellate Authority and the orders made on the review, the petitioner has instituted the instant writ petition under Article 226 of the Constitution. 11. A supplementary-affidavit dated 28.5.2023 was filed, which is more or less a formal affidavit, enclosing with it a copy of the order dated 6.10.2022 passed by the Board on review. A counter-affidavit dated 13.3.2023 was filed on behalf the ALIMCO Kanpur, to which the petitioner filed a rejoinder dated 26.4.2023. The parties having exchanged affidavits, when the matter came up on 25.8.2023, it was admitted to hearing, which commenced forthwith. The matter was heard again on 20.9.2023 and then once again on 13.10.2023, when judgment was reserved. 12. Heard Heard Mr. Tarun Varma, learned counsel for the petitioner, Mr. Rahul Shukla, Advocate, holing brief of Mr. Satya Priya Mishra, learned counsel appearing on behalf of respondents. 13. Mr. The matter was heard again on 20.9.2023 and then once again on 13.10.2023, when judgment was reserved. 12. Heard Heard Mr. Tarun Varma, learned counsel for the petitioner, Mr. Rahul Shukla, Advocate, holing brief of Mr. Satya Priya Mishra, learned counsel appearing on behalf of respondents. 13. Mr. Tarun Varma, learned Counsel for the petitioner has urged that the non-supply of the inquiry report before passing the order of punishment by the Disciplinary Authority has resulted in serious prejudice to the petitioner, as he could not point out procedural lapses and looking at the evidence against him in a way compatible with his innocence. The second submission is that the act, which has been attributed as a misconduct on account of the petitioner's negligence, is no more than negligible wear and tear with the supply of a big consignment, where the ALIMCO have not sustained any financial loss or a loss to their reputation. Thus, the submission is that whatever has been imputed to the petitioner, does not constitute misconduct at all. The third submission, which has been advanced by Mr. Varma is that the hearing before the Inquiry Officer was seriously impaired, causing him prejudice because it was held during the period of time when the Covid-19 pandemic had thrown life out of gear. In consequence, the hearing through videoconferencing resulted in disruptions and slight communication between the petitioner, the Inquiry Officer and the Presenting Officer, all of whom were located at different stations. The last submission that is urged by Mr. Varma with much seriousness is that whatever the misconduct found against the petitioner, considering its gravity, and the totality of the circumstances, the punishment imposed is one that is so excessive and harsh that it ought to be regarding as shockingly disproportionate by the Court. 14. Mr. Rahul Shukla, Advocate holding brief of Mr. Satya Priya Mishra, learned Counsel appearing on behalf of the respondents, urged that non-supply of the inquiry report does not automatically lead to vitiation of the order of punishment, unless prejudice is shown. Mr. Shukla has placed reliance in support of his submission, in this regard, on the decision of the Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others, (1993) 4 SCC 727 . Mr. Shukla has placed reliance in support of his submission, in this regard, on the decision of the Constitution Bench of the Supreme Court in Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others, (1993) 4 SCC 727 . He has invited the attention of the Court to paragraph No. 31 of the report in B. Karunakar (supra), where it is observed: ''31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. …........'' 15. It is further submitted that the inquiry report was not at all supplied alongwith the order of the Disciplinary Authority and the petitioner could and did take objections, based on the contents of the report. In a similar situation, repelling an identical plea, Mr. Shukla says that the Supreme Court in Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310 , held: ''9. …...... As stated earlier, the appellant had in his possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In para 31, this Court in Managing Director, ECIL [ (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] has very rightly cautioned: (SCC p. 758) ''The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts.'' 10. The Courts should avoid resorting to short cuts.'' 10. In our considered view, the High Court has failed to apply its judicial mind to the facts and circumstances of the present case and erroneously concluded that non-supply of the enquiry report/findings has caused prejudice to the respondent.'' 16. Learned Counsel for the respondents has further relied on the decision in Haryana Financial Corporation and another v. Kailash Chandra Ahuja, (2008) 9 SCC 31 , where their Lordships of the Supreme Court, repelling a similar plea of vitiation of the order of punishment to due non-supply of a copy of the inquiry report held: ''21. From the ratio laid down in B. Karunakar [ (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside.'' 17. In answer to the second submission, it is urged by the learned Counsel for the respondents that negligence is a misconduct under sub-Rule (9) (a) of Rule 5 of the ALIMCO Rule, where the relevant misconduct is defined. It reads: ''Rule 5: Misconduct (9) (a). Neglect of work or negligence in the performance of duty or including malingering or slowing down of work.'' 18. It is submitted that the petitioner being the Unit Head, it was his responsibility to ensure that appliances produced are as per quality standards of the ALIMCO and are stored in a proper, good and pristine condition. Neglect of work or negligence in the performance of duty or including malingering or slowing down of work.'' 18. It is submitted that the petitioner being the Unit Head, it was his responsibility to ensure that appliances produced are as per quality standards of the ALIMCO and are stored in a proper, good and pristine condition. The fact finding committee in its visit to the AAPC Jabalpur on 8.8.2019 observed that the entire final products, particularly rollers, CP chairs and motorized tricycles were kept in an open area in a haphazard manner, resulting in rusting of the same. The negligence on the petitioner's part, who could see, but ignored the effect of the elements of nature on the appliances and their consignment deterioration was established by witnesses during inquiry. 19. In answer to the third submission about an impaired hearing before the Inquiry Committee on account of the hearing done on various dates through videoconferencing, it is said that the hearing took place on 14.3.2020, 13.6.2020, 19.06,2020, 27.6.2020, 11.7.2020, 17.9.2020, 29.9.2020, 8.10.2020 and 29.10.2020, whereas a regular hearing at Kanpur took place physically on 24.10.2020. The other hearings were V.C. In the earlier hearings, documents on behalf of the prosecution from PD1 to PD-11 were marked. The testimony of five establishment witnesses, PW1 to PW-5 was recorded. The petitioner got ample opportunity to cross-examine these witnesses. The Court's attention has been invited to various pages of the paper-book, where the testimony of these witnesses has been appended. 20. So far as the last point urged on behalf of the petitioner, that is to say, the quantum of punishment being not only excessive, but shockingly disproportionate is concerned, it is submitted that the power to judge the magnitude of the punishment to be awarded commensurate to the gravity of misconduct, is best left to the primary decision maker, to wit, the Disciplinary Authority and the Departmental Authorities, in hierarchy, who have heard the petitioner's appeal and review. The High Court, while exercising power of judicial review, cannot substitute its conclusions on the quantum of punishment imposed. The High Court, while exercising power of judicial review, cannot substitute its conclusions on the quantum of punishment imposed. Reference is made to the decision of the Supreme Court in Krishna District Cooperative Central Bank Ltd. and another v. K. Hanumantha Rao and another, (2017) 2 SCC 528 , besides the State Bank of India and another v. M.J. James, (2022) 2 SCC 301 , State of Karnataka and another v. Umesh, (2022) 6 SCC 563 and Anil Kumar Upadhyay v. The Director General, SSB and others, 2022 SCC OnLine SC 478. 21. It is submitted that in order to show that the punishment on the issue of quantum requires re-consideration, nothing material has been shown. The petitioner has raised an issue about the competence of the Inquiry Officer or the Disciplinary Authority, but again, not substantiated it. The petitioner has failed to point out any relevant material that was not considered or any irrelevant material that was considered by the Inquiry Officer or the Disciplinary Authority in reaching their conclusions. It is submitted that it is not a case of no opportunity at all and if the petitioner pleads no adequate opportunity by referring to non-supply of the inquiry report, he has to demonstrate prejudice. 22. It is in the last submitted on behalf of the respondents that even if the Court comes to the conclusion that the inquiry was not properly conducted or that the quantum of punishment is shockingly disproportionate, the Court should not reinstate the petitioner in service, but simply remit the matter for fresh orders to the Disciplinary Authority. In support of this submission, learned Counsel for the respondents has placed reliance upon the judgment of the Supreme Court in Chairman, LIC and others v. A. Masilamani, (2013) 6 SCC 530 and Inspector of Panchayats and District Collector v. S. Arichandran and others, 2022 SCC OnLine SC 1282. 23. We have carefully considered the submissions advanced on behalf of learned Counsel for the parties and perused the record. 24. The foremost to be considered, in our opinion, is the point if non-supply of the inquiry report before the Disciplinary Authority made its orders, punishing the petitioner has led to vitiation of the orders of punishment. It is not in dispute that the petitioner was not supplied a copy of the inquiry report before the Disciplinary Authority passed orders, punishing him. It is not in dispute that the petitioner was not supplied a copy of the inquiry report before the Disciplinary Authority passed orders, punishing him. The 'no prejudice rule', in case a copy of the inquiry report is not supplied to the delinquent, applies if the only conclusion possible on facts is that of the petitioner's guilt on the charged misconduct. In paragraph No. 31 of the report in B. Karunakar (supra), it has been held: ''31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.'' 25. The requirement of supplying a copy of the inquiry report before the Disciplinary Authority makes its orders, was considered by the Supreme Court in Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, (2015) 8 SCC 519 . In Dharampal Satyapal Ltd. (supra), it was held: ''42. So far so good. However, an important question posed by Mr Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman [1943 AC 627 : (1943) 2 All ER 337 (HL)] . This Court also spoke in the same language in Board of High School and Intermediate Education v. Chitra Srivastava [ (1970) 1 SCC 121 : AIR 1970 SC 1039 ], as is apparent from the following words : (SCC p. 123, para 7) ''7. The learned counsel for the appellant, Mr C.B. Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show-cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.'' 44. At the same time, it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL [ (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] itself in the following words : (SCC p. 758, para 31) ''31. This was so clarified in ECIL [ (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] itself in the following words : (SCC p. 758, para 31) ''31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/tribunal should not interfere with the order of punishment. The Court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.'' 26. In the facts that obtained in Dharampal Satyapal Ltd., the useless formality theory was considered with reference to the short facts of the case there in paragraph No. 46 of the report, which reads: ''46. To recapitulate the events, the appellant was accorded certain benefits under the Notification dated 8.7.1999. This Notification stands nullified by Section 154 of the 2003 Act, which has been given retrospective effect. The legal consequence of the aforesaid statutory provision is that the amount with which the appellant was benefited under the aforesaid Notification becomes refundable. Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco [ (2005) 7 SCC 725 ] . Even after the notice is issued, the appellant cannot take any plea to retain the said amount on any ground whatsoever as it is bound by the dicta in R.C. Tobacco [ (2005) 7 SCC 725 ] . Likewise, even the officer who passed the order has no choice but to follow the dicta in R.C. Tobacco [ (2005) 7 SCC 725 ]. It is important to note that as far as quantification of the amount is concerned, it is not disputed at all. In such a situation, issuance of notice would be an empty formality and we are of the firm opinion that the case stands covered by ''useless formality theory''.'' 27. There is further elucidation of the principle in Himachal Pradesh State Electricity Board Limited v. Mahesh Dahiya, (2017) 1 SCC 768 . In Mahesh Dahiya (supra), it was held by the Supreme Court: ''31. Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by the letter dated 2.4.2008 the disciplinary authority-cum-whole-time members have already formed an opinion on 25.2.2008 to punish the writ petitioner with major penalty which is a clear violation of the principles of natural justice. We are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the enquiry report which finds a charge proved against the delinquent. The opinion formed by the disciplinary authority-cum-whole-time members on 25.2.2008 was formed without there being benefit of comments of the writ petitioner on the enquiry report. The writ petitioner in his representation to the enquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the disciplinary authority before it embarks with further proceedings as per statutory rules. We are, thus, of the view that there was violation of principle of natural justice at the level of disciplinary authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the enquiry report to the delinquent and before obtaining his comments on the enquiry report. We are, thus, of the view that there was violation of principle of natural justice at the level of disciplinary authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the enquiry report to the delinquent and before obtaining his comments on the enquiry report. We are, thus, of the view that the order of the High Court setting aside the punishment order as well as the appellate order has to be maintained.'' 28. Again, in a much later decision in M.J. James (supra), a decision on which both sides have placed reliance, it has been observed: ''31. In [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020 SCC OnLine SC 847] referring to the aforesaid cases and several other decisions of this Court, the law was crystallised as under : (SCC para 42) ''42. An analysis of the aforesaid judgments thus reveals: 42.1. Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. 42.2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. 42.3. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. 42.4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. 42.5. The ''prejudice'' exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.'''' 29. Now, the principles laid down in M.J. James, apparently referred to the decision of the Supreme Court in State of U.P. v. Sudhir Kumar Singh and others, (2021) 19 SCC 706 . The principles culled out there are principles to judge realistically the application of the rule about prejudice. It is pointed out in paragraph No. 42.4 of the report in Sudhir Kumar Singh (supra) referred to in M.J. James that one of the possibilities, where a violation of the principles of natural justice would not vitiate the result, is where only one conclusion is possible. It has been laid down in Sudhir Kumar Singh that the 'one conclusion' is an inference which the Court on appraisal of facts of a case draws and not the authority to deny natural justice to the person. If one were to look at the facts in Dharampal Satyapal Ltd., the misconduct was founded on the delinquent retaining a benefit under a notification that has been nullified by a subsequent amendment, giving it retrospective effect. The notification had granted excise incentives to those, who wanted to establish industries in the north-eastern region for a period of 10 years. The notification was dated 8.7.1999 and it granted new industrial unit in that area that had started commercial production on or after 24.12.1997 and certain types of industrial units that had increased their installed capacity after that date, exemption on goods cleared from units located in growth centres and integrated infrastructure centres, to borrow the words of their Lordships. 30. The further developments that happened, can be best expressed in the words of their Lordships in paragraph Nos. 2 to 4 of the report in Dharampal Satyapal Ltd.: ''2. The aforesaid Notification was issued under the provisions of the Central Excise Act, 1944 as well as the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. 2 to 4 of the report in Dharampal Satyapal Ltd.: ''2. The aforesaid Notification was issued under the provisions of the Central Excise Act, 1944 as well as the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. However, on 31.12.1999, another Notification was issued whereby exemption of Central excise was withdrawn in respect of goods falling under Chapter 21.06 (pan masala) and Chapter 24 (tobacco and tobacco substitutes, including cigarettes, chewing tobacco, etc.). 3. This withdrawal Notification was challenged by the appellant by filing the writ petition in the High Court of Gauhati. The learned Single Judge dismissed the writ petition. However, the appeal preferred by the appellant was allowed by the Division Bench vide judgment dated 3.12.2002 [Dharampal Satyapal Ltd. v. Union of India, (2003) 2 Gau LR 358] . In a nutshell, the High Court held that the principle of promissory estoppel shall apply and once a promise was given by the Union of India assuring that no such duty would be charged for a period of ten years, it was not open for the Union of India to withdraw the same. Challenging that judgment, the Union of India filed petitions for special leave. Leave was granted and the petitions were registered as Civil Appeals Nos. 8841-44 of 2003. 4. After the filing of the aforesaid appeals, certain subsequent events took place. It so happened that vide Section 154 of the Finance Act, 2003 (hereinafter referred to as ''the 2003 Act''), withdrawal of the benefit was effected from retrospective effect. Effect thereof was to withdraw the benefit given under the Notification issued earlier. Validity of Section 154 was questioned and the issue was considered by this Court in R.C. Tobacco (P) Ltd. v. Union of India [ (2005) 7 SCC 725 ] . This Court upheld the constitutional validity of the aforesaid provision and repelled the challenge so laid. The effect was to disentitle the appellant and other similarly situated from getting any such benefit by virtue of Section 154 of the 2003 Act and knocking down the basis of the judgment of the High Court, which lost its validity on the aforesaid ground.'' 31. The effect was to disentitle the appellant and other similarly situated from getting any such benefit by virtue of Section 154 of the 2003 Act and knocking down the basis of the judgment of the High Court, which lost its validity on the aforesaid ground.'' 31. It was in the context of the said facts that a plea about denial of natural justice was repelled by the Supreme Court in Dharampal Satyapal Ltd., because after the amendment by Section 154 of the Finance Act, 2003, the benefit of the excise exemption notification disappeared. There was no possibility of the petitioners retaining the benefit or showing cause in respect thereto. Therefore, the assessment of the excise duty that the notification earlier exempted having been withdrawn by the Amending Act, opportunity would make no difference in the matter of assessment. It was in that context held in Dharampal Satyapal Ltd. that provision of opportunity would be a futile exercise or an empty formality. 32. Now, the present case is on facts not one where the nature of the misconduct alleged against the petitioner, is an open and shut case. It is true that the facts here show that out of 118 blocks, who were supplied with units meant for differently abled children, complaints were received from two alone. There is much to be represented against in the findings recorded by the Inquiry Officer. One of the findings recorded at page No. 443 of the paper-book, carrying inquiry report, reads: ''10.2.26- CO contended that they have dispatched appliances in 118 blocks in 21 districts of M.P.. Out of that only in 02 destination rusted/damage product has reported which has recovered from transporter bill. Even in Ujjain district appliances are dispatched in 06 blocks but damage reported in 02 blocks only in other 04 blocks no damage reported in Mohit Khanna Inspection Report. It is clear that if officers concern is not able in their assigned roles and responsibilities then how in 118 blocks, appliances are reached in OK condition. CO himself is admitting that at 2 destinations rusted/damage product has been reported. CO has not been charge-sheeted for 118 blocks. Thus, there is no merit in the CO's version.'' 33. It is clear that if officers concern is not able in their assigned roles and responsibilities then how in 118 blocks, appliances are reached in OK condition. CO himself is admitting that at 2 destinations rusted/damage product has been reported. CO has not been charge-sheeted for 118 blocks. Thus, there is no merit in the CO's version.'' 33. What the petitioner wish to say before the Inquiry Officer is that there was a minuscule damage detected in the number of appliances supplied, as compared to the consignment, that was sent to 118 blocks in various districts of Madhya Pradesh. The damage was reported to the extent of 0.47%. The petitioner intended to point out that such negligible quantum of error in a bulk order could well be the 'wear and tear' of handling such a bulk consignment dispatched to different destinations. There could be an error at the level of the transporters, which was beyond the petitioner's control. Even if it was not, a small allowance has to be given where a bulk order has been successfully handled. The Inquiry Officer concluded from this submission that the petitioner has admitted that at two destinations, rusted/damaged products have been reported. It is also concluded by the Inquiry Officer that the petitioner has not been charge-sheeted for all the 118 blocks, and, therefore, there is no merit in the submission. Now, this conclusion of the Inquiry Officer is apparently perverse. He has not appreciated the petitioner's contention about a bulk order being successfully delivered, comprising of products for differently abled children, where in a very minuscule number of products supplied, some defect was reported; others were apparently sound and good. If this is the kind of appreciation of the case by the Inquiry Officer, certainly provision of a copy of the inquiry report was of the utmost necessity. There is something else to be noticed in paragraph No. 10.2.25 of the inquiry report, which reads: ''10.2.25- CO submitted that the charge ''the officers concerned were lacking in their assigned roles and responsibilities and failed to apply due diligence while manufacturing/dispatching the material/appliances'' is vague and not specific about the officers concerned, thus denied. All concerned officers are very much devoted and competent to complete the assigned duty. All concerned officers are very much devoted and competent to complete the assigned duty. By collective effort of APC Jabalpur employees, our Centre has got maximum turn over award from CMD ALIMCO in the financial year 2015-16, 2016-17 and 2018-19. The submission of CO is not tenable. The issue of maximum turn over has no relevance with the supply of substandard and poor quality of product to SSA Ujjain by AAPC Jabalpur Unit which was headed by CO. Moreover, it is a matter of record that a serious view was taken by Hon'ble Minister of Social Justice and Empowerment. The Hon'ble Minister personally enquired about the supply of Substandard and Poor Quality of Product and instructed to identify the Officers responsible for the lapses and to take stern action against concerned officers. Besides, a news item was also published in the newspaper which has definitely tarnished the image of the ALIMCO in public mind. Further, contents of Exhibit PD-14 para 3 may also be referred.'' 34. A perusal of paragraph No. 10.2.25 of the inquiry report shows that in answer to the petitioner's defence that all the concerned officers were devoted and competent and by their collective effort, the AAPC Jabalpur has got the maximum turnover award from the Chief Managing Director of the ALIMCO for the financial year 2015-16, 2016-17 and 2018-19, it was observed by the Inquiry Officer that the issue of maximum turnover has no relevance with the supply of substandard and poor quality products at Ujjain by the AAPC Jabalpur, headed by the petitioner. This may have had some sense to it if not for the words that have followed the finding. The words that follow show that the Hon'ble Minister of Social Justice and Empowerment have personally inquired about the supply of substandard and poor quality of products and instructed to identify officers responsible for the lapses and take stern action against them. It is also remarked that a news item was also published in the newspaper, which has definitely tarnished the image of the ALIMCO in the public mind. It is also remarked that a news item was also published in the newspaper, which has definitely tarnished the image of the ALIMCO in the public mind. Now, while a Minister may issue a direction for an inquiry to be held and responsibility fixed, the impression one may gather from these remarks of the Inquiry Officer is that he has recorded 'over enthusiastic' finding in deference to the Minister's perceived command to punish someone, whereas the command was to inquire and fix responsibility. The reference to the newspaper report is certainly an irrelevant material, which the Inquiry Officer has taken into consideration. These remarks carried in just two pages of the report have been pointed out by way of illustration to show that in the nature of the charge that was before the Inquiry Officer and the findings that he returned, there are and could be many things to point out for the petitioner to the Disciplinary Authority before he recorded his decision. This is certainly, therefore, a position where the 'useless formality theory' cannot be invoked to exclude the requirement of adhering to the principles of natural justice. The supply of the inquiry report in this case, in the very nature of the charge against the petitioner and the kind of findings that the Inquiry Officer seems to have recorded in his report, necessitated the provision of its copy before the Disciplinary Authority proceeded to determine if the petitioner was guilty. 35. The appellate order has not done much to consider the petitioner's version and somewhere this Court feels that the petitioner's version has not been objectively considered by the Authorities, given the fact that the matter concerned differently abled children. While it may be true that the interest of the differently abled persons are to be zealously guarded, it does not mean that in all such cases, the slightest of human error should lead to mindless punishment being awarded. 36. This Court is also inclined to accept the submission advanced on behalf of the petitioner in the facts here that the punishment of removal from service is indeed shockingly disproportionate. It is shockingly disproportionate to this Court's conscience given the small scale of the error, its quick redressal on the first report and the size of consignment handled. 36. This Court is also inclined to accept the submission advanced on behalf of the petitioner in the facts here that the punishment of removal from service is indeed shockingly disproportionate. It is shockingly disproportionate to this Court's conscience given the small scale of the error, its quick redressal on the first report and the size of consignment handled. The conditions of transport, which is in the hands of individual transporters, too have to be borne in mind before a realistic conclusion is reached. 37. This is a case, where we are inclined to think that independent of the question of guilt, the respondents ought to re-consider the punishment awarded to the petitioner. Not everything is to be punished with a terminal penalty. This case presents facts, in the totality of which the question of punishment ought to be re-considered by the respondents as the one impugned is shockingly disproportionate to the Court's conscience. 38. So far as the principles about non-reinstatement in the event the orders of punishment are set aside on grounds of violation of principles of natural justice are concerned, those are cases confined to matters where the order of punishment is set aside only on the ground of violation of principles of natural justice. In S. Arichandran (supra), the case was one of a misconduct arising out a misappropriation of the Panchayat funds by the Panchayat Assistant and the order was set aside on ground that without furnishing the delinquent a copy of the inquiry report and inviting his comments, the order dismissing him from service was passed. It was in that context that in S. Arichandran, it was held: ''16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as the order of dismissal has been set aside on the ground that the same was in breach of principles of Natural Justice, the High Court ought to have remitted the case concerned to the Disciplinary Authority to conduct the inquiry from the point that it stood vitiated and to conclude the same after furnishing a copy of the Inquiry Report to the delinquent and to give opportunity to the delinquent to submit his comments on the Inquiry Officer's Report.'' 39. In S. Arichandran, it would be noticed that the order made by the High Court was reinstatement with back-wages, whereas the flaw was merely denial of natural justice. It was in the aforesaid facts that the principle was invoked by their Lordships not to reinstate the petitioner pending an inquiry to be held de novo from the stage of charge-sheet. Here, we have also found the punishment to be shockingly disproportionate and while we cannot substitute the punishment, which may be condign in our judgment, we certainly think that it is a case where the Disciplinary Authority has to consider the option about a lesser punishment, if at all. Therefore, the principle against non-reinstatement would not be applicable to the facts here. Of course, the petitioner would not be entitled to anything towards back-wages till a fresh decision is arrived at by the Disciplinary Authority. 40. In the result, this petition succeeds and is allowed. The impugned order dated 30.12.2020 passed by the Disciplinary Authority, the order dated 9.7.2021 passed by the Appellate Authority and the order dated 6.10.2022 passed on Review by the Board of Directors of the ALIMCO Kanpur are hereby quashed. The Disciplinary Authority shall be at liberty to require the petitioner to file a reply to the report of the Inquiry Officer within a month of receipt of a copy of this judgment, and proceed to pass fresh orders after considering the petitioner's reply. In the event the Disciplinary Authority choose to proceed afresh and also hold the petitioner guilty, the said Authority will consider imposing a punishment that is not disproportionate and preferably not terminal. The petitioner shall be reinstated in service and paid current salary, but will not receive any back-wages until a final decision is taken by the respondents in the disciplinary matter. When final orders are passed, subject to the nature of the punishment, if any, awarded to the petitioner, or if no punishment is awarded, the respondents will take a fresh decision about the petitioner's emoluments, payable during the period that he has remained out of service. 41. There shall be no order as to costs.