Calcutta High Court (Appellete Side)
Debashis Paul vs Commandant on 2 February, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
W.P.A. 11358 of 2019
Debashis Paul
-Vs-
Commandant, CISF Unit, D.S.P., Durgapur & Ors.
For the Petitioner : Dr. Madhusudan Saha Roy
Ms. Debangana Dey Nayak
For the Union of India : Mr. Swapan Kumar Nandi
Mr. Sourav Mondal
Heard on : 15.01.2026
Judgment on : 02.02.2026
Ananya Bandyopadhyay, J.:-
1. The petitioner's grievance against the reprehensible acts of the respondents
as claimed to be prejudicial by the petitioner for nearly two decades has a
chequered history which had been dealt by the Hon'ble Co-ordinate Bench of
this Court in WP 25864(W) of 2007 extensively vide order dated December 9,
2016 upon exhaustive consideration of the submissions rendered on behalf
of both the Learned Advocates representing the petitioner as well as the
respondents.
2. The aforesaid order had been annexed with the instant writ petition to the
absolute knowledge of both the petitioner as well as the respondents and a
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reiteration of the dispute, in question, from its inception which had been
perused by this Court in minute details and a repetition of the facts and
circumstances leading to the initiation of the departmental proceedings
subsequent events and consequent removal from service repetitive in nature
will be in voluminous replication and, therefore, prudently not stated here
except for strict reference.
3. The following paragraphs from the aforesaid judgment of the Co-ordinate
Bench is replicated as follows:-
".........
21. Considering the submissions advanced by the learned Advocates
appearing for the parties and after perusing the records and also
considering the citations (State of Uttar Pradesh and Others, Shobha
Sinha, Dev Singh and Kartick Chandra Ghosh (supra) relied on by Mr.
Saha Roy I find that despite repeated demand in writing by the
petitioner to furnish the relevant records and also to produce the
witnesses the disciplinary authority did not take any steps to supply
those documents as well as preliminary report to the petitioner or to
produce those witnesses during the proceedings although the relevant
rule of CISF clearly provides for furnishing document as sought for.
22. It is also evident from the records that in the FIR only the name is
mentioned not the constable number.
23. It is also cannot be ignored by the Court that in the FIR the person
identified with yellow T-shirt without mentioning the constable number.
It is also surprising that against the initial punishment imposed by
respondent no.4 Group Commandant CISF the petitioner preferred
appeal but curiously the appellate authority instead of disposing the
appeal returned the same and by the order dated 20th February, 2007
suo-moto revision was made thereby enhancing the punishment from
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reduction of salary in minimum scale to dismissal from service.
Challenging the said suomoto revision order of removal petitioner
preferred appeal before the respondent no.2 but removal order was
confirmed by the respondent no.2. Admittedly enhancement of
punishment to the removal from the service passed in suo-moto revision
petition is patently illegal and shockingly disproportionate to the
charges levelled against the petitioner.
24. I also cannot ignore the fact that without complying the procedural
aspects as laid down in CISF Act and Rules the authority vindictively,
arbitrarily suomoto in revision application imposed the extreme harsh
punishment like dismissal from service. It is admittedly shockingly
disproportionate . The Hon'ble Apex Court in catena of decisions
repeatedly held that when the punishment is harsh and shockingly
disproportionate to the charges then the Court has power to interfere in
the proceedings. I am however mindful of the scope of judicial scrutiny
of disciplinary proceedings is limited to the extent of finding out
whether the delinquent was given sufficient opportunity to defend
himself or whether the authority followed the appropriate service rules
and/or regulations while proceeding against the delinquent thereby
imposing final order of punishment like dismissal from service. Hence
the action taken is exceptional and thus deserves interference by the
Court.
25. Since it is evident that without supplying the documents and
without giving sufficient opportunity to the petitioner to defend his case
and without following appropriate service rules and regulations the
harsh punishment like dismissal from service has been suo-moto
imposed in revision application which has been subsequently
confirmed by the respondent no.2, in my considered view such action
cannot be sustained in the eye of law.
26. Accordingly, I have no hesitation to hold that the impugned orders
dated 10th November, 2006 passed by the respondent no.4, Group
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Commandant , CISF H/Q, R.S. Kolkata and the order dated 20th
February, 2007 passed by the respondent no.3, Deputy Inspector
General/NEZ Kolkata as well as the order dated 11th July, 2007
passed by the appellate authority being respondent no.2, Inspector
General/NES Kolkata cannot be sustained in the eye of law as well as
facts and circumstances of the case. Resultantly, the impugned orders
dated 10th November, 2006 passed by the respondent no.4, Group
Commandant , CISF H/Q, R.S. Kolkata and the order dated 20th
February, 2007 passed by the respondent no.3, Deputy Inspector
General/NEZ Kolkata as well as the order dated 11th July, 2007
passed by the appellate authority being respondent no.2, Inspector
General/NES Kolkata are hereby quashed and set aside on the
touchstone of gross violation of principles of natural justice as well as
for illegality, irregularities and procedural impropriety .
27. Therefore, the petitioner shall be reinstated in service for the
purpose of completing the disciplinary proceedings in accordance with
law. That proceedings shall resume from the stage of furnishing copies
of the management documents to the petitioner.
The authority also shall be at liberty to place the petitioner under
suspension. In such circumstances, the petitioner shall be entitled to
receive subsistence allowance as per rules.
The petitioner shall also be entitled to 50% of his back wages during
the period spent under dismissal as the petitioner could have earned
his entire salary if he would have served the authority.
28. It is needless to mention that no evidence has been produced by
the authority to establish that the petitioner was in gainful employment
during the period of dismissal. Thus the arrears be calculated and paid
to the petitioner within 8 (eight) weeks from the date of receipt of this
order.
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It is directed that the authority shall complete the disciplinary
proceedings in terms of this order within 8 (eight) weeks from the date
of receipt of the copy of this order.
29. The petitioner is directed to cooperate without seeking any
unnecessary adjournment.
30. The writ petition stands allowed to the aforesaid extent without
any order as to costs.
........."
4. Pursuant to the aforesaid judgment of the Co-ordinate Bench of this Court
vide order dated 10th February, 2017 marked as Annexure P-3 to the instant
writ petition, the respondent authority, inter alia, passed an order stating as
follows:-
"..........
6. Now therefore, in order to comply the Judgment and Order dated
09.12.2016 passed by the Hon'ble Calcutta High Court, No.932332578
Ex-Constable Debasish Paul is hereby re-instated in service with
direction to report at CISF Unit, IOC Haldia, as CISF Unit FCI, New
Jalpaiguri, where the petitioner was removed from service is no more in
existence due to de-induction of CISF, within 15 (Fifteen) days from the
date of receipt of this Order, failing which it will be presumed that he is
no more interested to serve this organization and this Order hall
automatically stands cancelled.
7. It is also ordered that the Petitioner shall be paid 50% of his back
wages during the intervening period from the date of Removal from
Service to the date of his re-instatement in service.
8. Further, the same Disciplinary proceedings will resume against the
Petitioner from the stage of furnishing copies of the Management's
documents to him.
9. The intervening period from the date of his removal from service till
the date of his re-instatement will be regularized separately.
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.........."
5. On 18.04.2017, vide a communication marked as Annexure P-4 to the writ
petition, a notice for preliminary hearing was issued whereby the Enquiry
Officer, appointed to enquire the charge levelled against the petitioner, fixed
the next date of hearing on 27.02.2017. The petitioner through a
communication addressed to the Enquiry Officer dated 24.04.2017 sought
for inclusion of three persons namely A.K. Arya Company Commander, D
Coy-2, G.C. Adhikari Crime I/C and S.P. Ghosh CHM, DSP Durgapur who were
pertinent to be examined for the purpose of progression in the departmental
enquiry.
6. The petitioner had furnished his reply to the memorandum of charge dated
07.11.2017. During the course of hearing on 21.04.2017 at the time of
preliminary hearing, the following question and answer had been delineated
as follows:-
"Question No 09. Do you wish to take extract of any relevant
documents of the case which have not been received by you? If yes,
apply in writing.
Ans 09. I want the copy of following documents, (i) PE report, (ii) GD
extract on 10.06.2005 of Gate No 02 of "D" coy, CISF Unit DSP
Durgapur, (iii) Duty deployment chart G shift (Computer copy) of "D"
coy, Gate No 02 on dated 10.06.2005, CISF Unit DSP Durgapur & (iv)
Duty Register extract copy of "D" coy, Gate No 02 on 10.06.2005, CISF
Unit DSP Durgapur. I also give in writing for the same.
........"
7. Vide order dated 11.06.2017, the Disciplinary Authority arrived at the
following observation:-
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"FINDINGS.
The statement of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 & CW-1, CW-2
conclusively proved that the charged official, CISF No.932332578 CT-
GD (U/S) Debashis Paul of CISF Unit IOC Haldia (Previously of CISF
Unit DSP Durgapur & CISF Unit FCI, New Jalpaiguri, while performing
the General shift Adm duty on 10.06.2005 at the left side of Gate No.
2A under the jurisdiction of "D" Coy of CISF Unit DSP Durgapur,
signaled one dumper bearing No.WB-39/1291 loaded with Nut coke
unauthorisedly for exit through the Gate No.2A at about 17:50 hrs in
the evening of 10.06.2005 and the said dumper was not stopped at the
exit point of Gate No. 2A for checking, while chased by DSP
management officials by a jeep from Stipper Bay to Gate No.2A and
one HC/GD D.P. Singh, who deployed in B shift at SH-29.
The prosecution exhibits (PW-2/P1), (PW-2/P2), (PW-2/P3), (PW-3/P1),
(PW-4/P1), (PW-5/P1), (PW-5/P2), & Court witness exhibits (CW-1/P1),
(CW-1/P2), (CW-1/P3) are ample documentary proof that
No.932332578, CT/GD Debashis Paul was posted at CISF Unit DSP
Durgapur on 10.06.2005 and performing Gate No.2A, barrier duty on
10.06.2005, further at about 18:10 hrs on 10.06.2005, was found that
inside the CISF office at Gate 2, a person wearing yellow T-shirt was
sitting and he was identified by the Raw Materials personnel present
at the gate as the man who had signaled the said dumper, i.e. WB-
39/1291 to leave the plant premises and on his query by GM (Services)
Durgapur Steel Plant, the person wearing yellow T shirt informed that
his name was Shri Debashis Paul and he also said that he was on
office duty.
Hence the article of charge-I, framed against CISF No.932332578,
CT/GD(U/S) Debashis Paul of CISF Unit, IOC, Haldia, vide charged
memorandum No.V-15014/DSP/Disc/Maj-33/2005/13442 dated
18.11.2016 is established."
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8. The petitioner vide a communication dated 19.06.2017 addressed to the
Presenting Officer/Enquiry Officer, inter alia, stated as follows:-
"..........
That I at relevant point of time was wearing P.T. Dress and not yellow
T-Shirt and I was deployed under the supervision of D. Company at
Gate No.2 and not at Gate No.2A. No preliminary enquiry report was
given to me which is one aspect of violation of principle of Natural
Justice.
That from duty list dated 10.06.2005 it would reveal that my name
does not appear in duty list of Gate No.2A. It would also appear the
vehicle in question went empty i.e. vehicle no.WB-39-1291 at 17:55
hours on 10.06.2005. For this I cannot be held responsible when I was
deployed in General shift duty and not as Security at Gate No.2A.
That if there was suspicion that I was present at the spot on the very
day as alleged then why I was not arrested on the very day. The
authority could have arrested me under Section 11(i), (ii) of the Central
Industrial Security Force Act, 1968 on the spot. I say that on mere
suspicion and on mere conjecture my career and my livelihood cannot
be put in jeopardy. Moreover there is no iota of proof that I have
acquired any wrongful gain from such alleged incident.
That I could have been detained under Section 12 of the Central
Industrial Security Force Act, 1968 when it was alleged that I was
present in yellow T-Shirt then why it was not done? The truth is that I
was actually not present on the spot on the alleged date of incident.
The departmental enquiry is a quasi-judicial proceeding and the
enquiry officer must see the charges level against the delinquent must
be found to have been proved. The enquiry officer should be biased. It
is evident insipte of order of the Hon'ble High Court no documents were
supplied to me.
Apart from the aforesaid facts:-
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Until and unless I get the relevant documents as also directed by the
Hon'ble High Court to furnish me the same by the department I cannot
defend my case. The principle of natural justice is not followed in true
perspective. The concerned authority is not following the order passed
by the Hon'ble High Court in true perspectives.
In conclusion I earnestly submit that I am innocent. I have not obtained
any wrongful gain in my service. I have tried my level best to render
service for CISF with utmost sincere effort and honesty. I also promise
to do the same in future with sincere effort and honesty."
9. The Deputy Commandant, CISF Unit, IOC Haldia, vide a communication
dated 01.04.2017, inter alia, stated as follows:-
"02. It is to inform you that the documents asked by you has been
taken up with the DIG, CISF Unit DSP Durgapur (custodian of
documents) and Gp Comdt CISF Gp HQ(K) and it was intimated by the
Gp CO/Gp HQ(K) vide Ltr No.(2536) dtd 27.04.17 that the matter has
already been taken up with CISF Unit DSP Durgapur by the Gp
Comdt/Gp HQ(K) and in turn they have intimated vide their letter
No.IC-11025/CISF/DSP(D)/CIW/2017/254 dated 25.02.17 that the
documents mentioned in Sl. No.02 to 04 could not be found out / traced
as they have been weeded out by a board of officers as per rule since
document pertains to year 2005.
03. Hence the document Sl No.01 i.e. PE report is being provided
to you and it is also informed that even though the documents
mentioned in Sl No.02 to 04 are weeded out / not traceable but you
will be provided with ample opportunity as per rule to defend your case
and the relevance / importance of those documents which could not be
made available to you will be taken into consideration during the DE.
03. In view of above, PE report containing page No.01 to 16 is
supplied to you for defending your case.
......."
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10. Despite repeated communications to the Disciplinary Authority seeking for
relevant documents, the same failed to supply the documents sought for and
by order dated 11.08.2017 the Disciplinary Authority, inter alia, passed the
following order:-
".........
Charged official in his reply dated 10.07.2017 has contended that
neither any defence witnesses nor any defence document were
furnished to him. The authority took evidence of Prabir Kumar Pal, A.K.
Virmani and S.K. Roy. All these persons are retired. He prayed for
defense witnesses inter alia A.K. Arya and S.P. Ghosh who are in
service and G.C. Adhikari who has retired. But none of them appeared
on flimsy ground and contrary to the provision of law.
..........
As regards prosecution witnesses are concerned. all the PWs and CWs including retired Personnel have attended the enquiry in response to communication made with them by EO but DWs had not attended the enquiry on their own wills. The plea of the charged official that he requested to produce ASI/Exe D.N. Mondal, who was on duty at Gate No.2A as defence witness has been examined and it has been revealed from the enquiry report that charged official did not mention his name either verbal or in writing during any stage of enquiry. Besides, the charged official has not even requested/mentioned during preliminary hearing of the enquiry for producing ASI/Exe D.N. Monal as his defence witness. Hence the plea put forth by the charged official that no witnesses were present to prove his case has hardly any merit. As regards supply of documents is concerned, as requested by the charged official for supplying some documents viz. (1)PE report, (2)GD extract on 10.06.05, (3)Duty deployment chart 'G' shift with computer copy on 10.06.05 and (4) Duty register extract copy of D Coy gate No.2 on 10.06.2005 etc., efforts were made to provide him the above 11 documents by taking up the matter with the custodian of the Documents i.e. DIG, CISF Unit, DSP Durgapur. Accordingly, copy of PE report which was available with them was served upon him. But other documents so asked by charged official could not be supplied to him because those documents have been weeded out/not traced out as intimated by the Custodian of Documents (DIG, CISF Unit, DSP, Durgapur). The charged official was-informed about above mentioned actual facts and he was assured that even though the other documents could not be supplied to him, but ample opportunity will be given to him to defend the charge as per rule and also the relevance of those documents which could not be supplied to him will be taken into consideration during the enquiry. Considering the above facts, the charged official has been afforded all reasonable opportunities to defend his case effectively and charged official attended the DE willingly till its completion.
The plea of the charged official that due to non supplying of the above documents, he was unable to provide evidence regarding his presence in his duty place at Gate 2 does not have any merit. The charged official himself admitted that he was performing adm duty at Gate No.2 and performing company line maintenance at Devy camp area in P.T. dress on 10.06.2005. In CISF general shift adm duty is not fixed point/static duty. Rather such duties are very diffused in nature with variable timings and, place. As per records charged official was detailed for adm duties in general shift on 10.06.2005 in "D" Company area. It clearly implies that he could have moved here and there of D company areas at his own including Devi camp, gate No.2 and Gate No.2A etc as both gate No.2 & 2A falls within the jurisdiction of "D" Company area. Moreover the distance between gate No.2 and 2A is about 45-50 Mtrs besides, Devi camp is located at a distance of 400- 450 Mtrs. away from gate No.2A which makes it clear that charged 12 official could have easily reached to any gates under "D" company at any time during his general shift adm duty.
..........
In view of all the above facts, I fully agree with the findings of the enquiry officer and hold the charged official guilty of the article of charge levelled against him. The charged official has been appointed in CISF for protecting and sale guarding of properties of the undertaking where he is deployed. But he failed to do so and involved himself in taking out undertakings' property unauthorisedly (i.e. Nut coke loaded in a dumper No.WB-39/1291), through gate No 2A which is a serious offence and not tolerable in a Disciplined Central Armed Police Force like CISF whose main aim is to provide safety & security to Govt. property and he deserves stringent punishment for his proven misconduct.
Hence, in exercise of powers conferred upon me under Rule- 32(Schedule-1) read with sub Rule(iii) of Rule 34 of CISF Rules, 2001 hereby award the penalty of "Reduction of pay to the minimum stage from Rs.23,800/- to Rs. 21,700/- (in the Pay Matrix Level-03) for a period of three years with immediate effect. It is further order that he will not earn increment of pay during the period of reduction and that on expiry of the reduction period, this will have the effect of postponing his future increments of pay to No.932332578, Constable Debashis Paul of CISF Unit, IOC, Haldia.
His entire suspension period from 27.02.2017 to 10.08.2017 is treated as suspension only and he will get nothing more than subsistence allowance what he had already been paid during the aforesaid period of his suspension.
The intervening period from the date of removal from service to the date of joining on reinstatement (from 01.03.2007(FN) to 26.02.2017) will be regularized as 'not on duty' for the purpose of service. The petitioner is given an opportunity to submit his representation against the proposal 13 within one month of receipt of this order and decision in this regard will be taken after consideration of the representation, if any, submitted by the charged official or after expiry of the period one month as the case may be.
22. No.932332578, Constable Debashis Paul of CISF Unit, IOC, Haldia is hereby informed that, if desires so, he may prefer an appeal against this order to the Dy. Inspector General, CISF NEZ Kolkata within 30 days from the date of receipt of this order.
.........."
11. The Appellate Authority vide order dated 17.09.2017 confirmed the order of the Disciplinary Authority and rejected the appeal being devoid of merit. The petitioner further stated to have honourably acquitted under Section 242(1) of the Code of Criminal Procedure in connection with T.R. 559 of 2014 through a judgment delivered on 05.07.2018 by the Court of the Learned Judicial Magistrate Second Court, Durgapur.
12. This Court has meticulously examined the documents on record, articles of charges, the report of the Enquiry Officer, the order passed by the Disciplinary Authority, the Appellate Authority, the judgment pronounced by the Co-ordinate Bench of this Court, the subsequent communications and references exchanged between the petitioner and the respondents.
13. The exhaustive written notes filed by the Learned Advocates representing the petitioner as well as the respondents have been discreetly and minutely perused, considered and appreciated. The subsequent order of the Co-
ordinate Bench of this Court in Paragraph 27 of the said judgment delineated that the proceedings should resume from the stage of furnishing copies of the management documents to the petitioner.
1414. The respondents repeatedly embarked on the facts that those documents had been weeded out and not traceable. It is weird, uncanny, unpragmatic and biased on the part of the respondent authority to proceed with the disciplinary in absence of documents which were relevant to prove the misconduct on the part of the petitioner. If the documents were not in possession of the respondent authority's punitive conclusions could not have been attributed to the misconduct of the petitioner since the identification with regard to his colour of the shirt could have been evinced as well as his activity and presence could have been detected therefrom.
15. The Disciplinary Authority proceeded with a closed mind and a preconceived notion which was verified by the fact of acquittal of the petitioner in the criminal case as aforesaid.
16. The petitioner is entitled to the preliminary enquiry report and the contemporaneous documents based on the scrutiny and reliability of which the prima facie charges were constituted against the petitioner. The denial of granting the same to the petitioner on the pretext of the same being consumed by weed or else decomposed or untraceable exemplifies oblique motive on the part of the respondent authority to even pursue the disciplinary proceedings without the preliminary enquiry report in its custody. The respondent authority in non-compliance of the order passed by the Co-ordinate Bench of this Court, arbitrarily, authoritatively with incorrigible aggression, proceeded to conclude the disciplinary proceedings depriving the petitioner of the preliminary report and other relevant documents to defend himself.
1517. In State of Uttar Pradesh Through Principal Secretary, Department of Panchayati Ray, Lucknow Vs. Ram Prakash Singh 1, the Hon'ble Supreme Court observed as follows:-
"41. Application of the test of 'prejudice', when the requirement is mandatory in character and where admittedly the report of enquiry has not been furnished, goes against the very grain of the answer 40 rendered by the Constitution Bench in B. Karunakar (supra) to the basic issue that was under consideration before it. It is proposed to discuss, a little later in this judgment, why the test of 'prejudice' may not be made applicable in respect of disciplinary action, proceedings wherefor have commenced after the decision in B. Karunakar (supra) was rendered, appreciating the deleterious effects likely to befall employees who have been punished without furnishing of the enquiry reports. We consider it reasonable to think that in every case of failure/omission/neglect to furnish the report of enquiry, which is an act of the employer certainly in utter disregard of the ratio decidendi of the decision in B. Karunakar (supra), calling upon the employer to justify why the judicial mandate of the Constitution Bench had not been followed could have eased the situation.
42. Be that as it may, the question that troubles us is this: does the law laid down while answering incidental questions have the effect of overriding or prevailing over or modifying the law declared on the main issue by the Constitution Bench? Questions (v), (vi) and (vii) framed by the Constitution Bench in B. Karunakar (supra), to our mind, were necessitated because of the error/anomaly that was noticed in the ultimate direction in Mohd. Ramzan Khan (supra). As we read and understand the law laid down in B. Karunakar (supra), the answers to questions (v), (vi) and (vii) were intended to have limited application, that is, to matters which were already 41 pending before this Court or before 1 2025 INSC 555 16 the high courts as on date the Constitution Bench rendered its decision, where the challenge was laid to punishment orders passed, both prior to and post November 20, 1990, i.e., the day when Mohd. Rizwan Khan (supra) was decided. And the answer to question (i), which was to apply prospectively, was intended to guide decisions in future cases making it imperative that the employer has to furnish such report to the delinquent employee, no matter who the employer is, what the rules say or whether the delinquent employee asks for it. Whatever be the legal (non)requirement or the factual position, the report has to be furnished.
That is the law. The report has to be furnished because it is an integral part of natural justice and consideration of the report behind the back of the delinquent employee would effectively deprive him of the protective shield of 'reasonable opportunity to defend' the charges. We are anchored in our conviction that any other interpretation of the Constitution Bench decision would result in diluting the law declared therein.
43. Interpretation of B. Karunakar (supra), particularly bearing in mind the shifting trend towards the 'prejudice' principle and the insistence on the pleading and proof of 'prejudice', may have unintended consequences for delinquent employees which have not been visualized hitherto, therefore, having the potential of rendering the law laid down by the Constitution Bench a dead letter.
44. To recapitulate, B. Karunakar (supra) has unequivocally held that 42 non-furnishing of the enquiry report would deprive the employee of the opportunity and disable him to demonstrate before the disciplinary authority the perversity in such report by filing a representation. The object that is sought to be achieved by furnishing of the enquiry report is this. If the report were furnished, the delinquent employee could persuade the disciplinary authority to hold that either he is innocent and/or that he does not deserve any punishment, or may be let off with a minor punishment. Providing a delinquent employee with an opportunity to respond to the enquiry report is, thus, a crucial procedural step that must 17 precede disciplinary action. Failure to do so, such as imposing punishment without furnishing the report, could severely handicap the employee's ability to effectively question or challenge the decision in an appeal/appropriate proceedings, as he would be unaware of the materials against him. In such a case, at best, nothing more than a plain and simple plea can be urged that non-furnishing of the enquiry report has deprived him of reasonable opportunity to counter the findings of guilt without, however, he being able to demonstrate prejudice. It is axiomatic that without reading the enquiry report, there cannot be an effective and meaningful challenge to the findings contained therein.
45. That apart, the right to receive the report of enquiry being available prior to a final decision being taken in the disciplinary proceedings cannot be postponed by any arbitrary act of the employer in not 43 following the law, which can be or should be validated by the court, and what was intended to be a pre-decisional opportunity cannot be made to partake the character of a post-decisional opportunity.
46. Imagine a scenario where the employer seeking to get rid of an inconvenient employee succeeds in its endeavour and dismisses him following an enquiry, flawed in itself, by relying on the report of enquiry without furnishing copy of the same to him. In such an eventuality, the dismissed employee while approaching a tribunal/court for redress has to do so without having access to the materials considered in the report. This is best exemplified by the present case where the report of enquiry has neither been furnished to the respondent nor placed on record before all the adjudicatory fora. In the absence of such access, can the delinquent employee be expected to demonstrate prejudice suffered by him? We are not sure how the burden can be discharged by the employee in such a case. This lack of access to the report would severely hamper the ability of the employee to demonstrate 'prejudice' and to build a strong case for succeeding in his challenge to the order of punishment. Besides, the lengthy legal process could be agonizing, and especially 18 without any earning, may not only lead to financial strain and diminished resolve but could eventually end up with the employee abandoning the challenge. Drawing from experience, we understand how employers take advantage and employ methods to drag on proceedings for years and thereby ensure that through the 44 process of 'wear and tear', the employee (if he has been either dismissed or removed from service) loses steam and, inevitably, lacking interest in the challenge effectively gets thrown out of the legal arena by forces beyond his control.
47. These are vital considerations which, in our considered opinion, need to engage the mind of every court while deciding to apply the test of 'prejudice'. In a battle between the mighty lion and the weak lamb when the former is in an overpowering position, should the courts lean in its favour and put the weak to the sword for not having demonstrated 'prejudice' when a brazen violation of the law declared by the Constitution Bench is brought to its notice? Why should the mighty not be made answerable as to why the report of enquiry has not been furnished and to bear whatever consequences that are bound to follow its failure, omission or neglect in this behalf? In a society governed by the rule of law and when the preambular promise is to secure equality and justice for all, the weak lamb is certainly entitled in law to demand that the ratio decidendi of B. Karunakar (supra) be followed to the 'T'. We regret, reliance placed in some of the decisions primarily on certain English decisions on whether 'opportunity would have served any purpose', may not be appropriate for acceptance in our service jurisprudence.
48. Looked at from a different angle, it is unheard of and simply unacceptable to us that employers could brazenly disregard the law 45 declared by the Constitution Bench and/or act in derogation of statutory rules, yet, argue that no prejudice was caused to the dismissed employee by reason of not giving him access to the enquiry report. If the answer to question (v) given in B. Karunakar (supra) is to be regarded as the final word, we are left to wonder whether it would have at all been necessary 19 for the Constitution Bench to elaborately discuss the law on the subject, stress on the importance and need for the enquiry report to be furnished to the delinquent employee and to introduce a new regime with prospective effect. If the test of 'prejudice' were to be given primordial importance, the Constitution Bench could have, on the contrary, simply observed that post 20th November, 1990 [the date on which Mohd. Ramzan Khan (supra) was decided], if in case report of enquiry in a particular case were not furnished to the delinquent employee and upon the matter reaching the tribunal/court for adjudication at a subsequent stage, the employer is under no obligation to explain why the report has not been furnished and its action of taking disciplinary action has to be judged and could be interdicted only in the event the employee, on the touchstone of 'prejudice', were to succeed in proving that he had been denied reasonable opportunity to defend. The Constitution Bench's careful consideration of question (i), viz. the need to furnish the enquiry report to a delinquent employee before disciplinary action is taken being an integral part of natural justice, the answer 46 thereto would be rendered redundant if such an approach by the employers is permitted. Allowing employers to circumvent the law declared by the Constitution Bench and dilution of such declared law regarding the necessity, nay imperative, to furnish the enquiry report by interpretative exercises subsequently undertaken by Benches of lesser strength without bearing in mind other Constitution Bench decisions (we propose to refer to them briefly, immediately after this discussion) on the effect of breach of natural justice principles and the consequences that could visit an employee whose service is terminated if the report were not furnished in the first place is an unfortunate development which undermines the rule of law.
49. Just as Articles 14, 19 and 21 of the Constitution constitute a triumvirate of rights of citizens conceived as charters on equality, freedom and liberty, the trio of decisions of Constitution Benches of this Court in 20 Union of India v. Tulsiram Patel40 , Olga Tellis v. Bombay Municipal Corporation41 and A.R. Antulay v. R.S. Nayak42 form the bedrock of natural justice principles being regarded as part of Article 14 of the Constitution and obviating the need to demonstrate 'prejudice' if a challenge were laid on the ground of breach of Article 14. In Tulsiram Patel (supra), it was held that violation of a principle of natural justice is violation of 40 (1985) 3 SCC 398 41 (1985) 3 SCC 545 42 (1988) 2 SCC 602 47 Article 14. The dictum of the three-Judge Bench in S.L. Kapoor v. Jagmohan43 that non-observance of natural justice is itself prejudice to any man and proof of prejudice, independently of proof of denial of natural justice is unnecessary, was approved by the Constitution Bench in Olga Tellis (supra). No prejudice need be proved for enforcing the Fundamental Rights is the emphatic assertion in A.R. Antulay (supra).
50. These Constitution Bench decisions have stood the test of time. Without being overruled in any subsequent decision, the law continues to bind all Benches of lesser strength. Equally, it cannot be gainsaid that with the march of time and the progress made in the years since then, nuanced or refined approaches to applying natural justice principles may be necessary and appropriate in specific cases. There can be no quarrel with this approach. However, we find it difficult for us to be guided by the decisions insisting on application of the 'prejudice' principle in the wake of the aforesaid Constitution Bench decisions. Accepting such decisions of lesser strength would signal re-imposition of the legal regime pre-Mohd. Ramzan Khan (supra) when the employer was under no obligation to furnish the enquiry report. We are afraid, this could encourage mischievous employers to drain out its terminated employee by ensuring that copy of the enquiry report is not furnished.
51. Thus said, what is the way for reconciling the law laid down in the 43 (1980) 4 SCC 379 48 precedents discussed so far? Attempting to clear the confusion arising out of different understandings of the ratio decidendi of the decision in B. Karunakar (supra), we proceed to focus on 21 the proper course for the tribunal/court to adopt when the issue reaches it for adjudication. In our opinion, whenever a challenge is mounted to an order of punishment on, inter alia, the ground that the report of enquiry has not been furnished, the tribunal/court should require the employer (Government, public or private) to justify nonfurnishing of such report. This is a course, which again experience has shown, is seldom followed. If no valid explanation is proffered and the tribunal/court suspects unfair motives (report has not been furnished as part of a strategic ploy or to advance an unholy cause or prompted by extraneous reasons) or carelessness, without much ado and without insisting for 'prejudice' to be demonstrated, the order of punishment should be set aside and the proceedings directed to resume from the stage of offering opportunity to the delinquent employee to respond to the enquiry report. Irrespective of 'prejudice' being demonstrated, no employer or for that matter anyone should be permitted to steal a march and gain any benefit by violating the law. In case the tribunal/court is satisfied that real effort was made by the employer but such effort remained abortive because the report could not be furnished to the employee for reason(s) beyond its control, or some other justification is placed on record, which is acceptable to the tribunal/court, the test of 49 'prejudice' is open to be applied but only after ensuring service of a copy of the enquiry report on the employee. In a case where the employee either expressly or by his conduct appears to have waived the requirement of having access to the report, it would be open to the tribunal/court to deal with the situation as per its discretion. However, the simplicitor application of the 'prejudice' test absent a query to the employer, as indicated above, in our opinion, would be in the teeth of the law laid down in B. Karunakar (supra).
52. We now sum up our understanding of the law declared in B. Karunakar (supra) and answer the four questions delineated in paragraph 26 (supra) compositely. Reading the declaration of law by the Constitution Bench regarding the imperative need to furnish the report of 22 enquiry to the delinquent employee even when: (i) the relevant statutory rules are silent or against it, (ii) the punishment to be imposed is other than the punishment referred to in clause (2) of Article 311 of the Constitution, (iii) the employee does not ask for it, and (iv) the burden is cast on a private employer too, and the law requiring furnishing of the report being made to operate prospectively from the date the decision in Mohd. Ramzan Khan (supra) was rendered, thereby reinforcing the legal position that prevailed after the GoI Act was enacted but became unsettled later, there can be no two opinions that on and from 20th November, 1990 [i.e., when Mohd. Ramzan Khan (supra) was decided] it is the mandatory requirement of law that the report of enquiry has to be 50 furnished to the delinquent employee. Taking a cue from S. K. Sharma (supra), we are inclined to the view that the requirement of furnishing the report of enquiry, though procedural, is of a mandatory character and the bogey argument of the employer to apply the test of 'prejudice' when the report of enquiry is not furnished cannot be of any avail to thwart the challenge of the delinquent employee. Such test could call for application, if from the facts and circumstances, it can be established that the delinquent employee waived his right to have the report furnished. Should satisfactory explanation be not proffered by the employer for its failure/omission/neglect to furnish the enquiry report, that ought to be sufficient for invalidating the proceedings and directing resumption from the stage of furnishing the report. No proof of prejudice for breach of a statutory rule or the principles of natural justice and fair play need be proved, unless there is a waiver, either express or by conduct, to of the right to receive the report. And, it is only in specific and not in all circumstances that proof of 'prejudice' ought to be insisted upon."
18. The Hon'ble Supreme Court in Maharana Pratap Singh Vs. The State of Bihar & Ors.2 held as follows:-
2 2025 INSC 554 23 "35.If there is a flaw from the inception of the disciplinary proceedings, i.e., the charge-sheet is not issued conforming to the relevant rules and the charged officer finds it difficult to meet the charges because it is vague, indefinite, not specific and lacking in material particulars, the chargesheet itself becomes susceptible to vulnerability. We are reminded of the decision of this Court in Surath Chandra Chakrabarty v. State of West Bengal where this Court ruled that:
6. Now in the present case each charge was so bare that it was not capable of being intelligently understood and was not sufficiently definite to furnish materials to the appellant to defend himself. It is precisely for this reason that Fundamental Rule 55 provides, as stated before, that the charge should be accompanied by a statement of allegations. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. ... The entire proceedings show a complete disregard of Fundamental Rule 55 insofar as it lays down in almost mandatory terms that the charges must be accompanied by a statement of allegations. We have no manner of doubt that the appellant was denied a proper and reasonable opportunity of defending himself by reason of the charges being altogether vague and indefinite and the statement of allegations containing the material facts and particulars not having been supplied to him. In this situation, for the above reason alone, the Trial Judge was fully justified in decreeing the suit. (emphasis supplied) ...
43. At this juncture, it is imperative to further underline that the chargesheet against the appellant was issued based on the written complaint of the informant. Law is again clear to the effect that mere production of a document does not constitute proof. If chargesheet is 24 issued on the basis of a written complaint, the author/complainant has to be produced. The decision of this Court in Bareilly Electricity Supply Co.
Ltd. v. Workmen30 is an authority for this proposition. Notably, in the instant case, the informant/complainant had not been examined. This, we hold is one other glaring error in the decision-making process.
44. Upon reviewing the materials at our disposal and considering the aforementioned anomalies in the issuance of the chargesheet and the procedural lapses, none of which can be attributed to the appellant, and in light of the absence of the departmental file pertaining to the disciplinary proceedings, we are compelled to conclude beyond any cavil of doubt that due process was not followed in dismissing the appellant from service, rendering the dismissal unjustified.
...
47. While an acquittal in a criminal case does not automatically entitle the accused to have an order of setting aside of his dismissal from public service following disciplinary proceedings, it is well-established that when the charges, evidence, witnesses, and circumstances in both the departmental inquiry and the criminal proceedings are identical or substantially similar, the situation assumes a different context. In such cases, upholding the findings in the disciplinary proceedings would be unjust, unfair, and oppressive. This is a position settled by the decision in G. M. Tank (supra), since reinforced by a decision of recent origin in Ram Lal v. State of Rajasthan31.
48. To assess the degree of similarity between the charges, evidence, witnesses, and circumstances in the disciplinary and criminal proceedings, it is indeed crucial to review the materials placed before the Court where such an issue arises. However, we regret, absence of the departmental file has disabled us from looking into the same.
49. Notwithstanding the above, a plain reading of the materials available on record only reveals that charge no. 1 in the disciplinary closely resembled the allegations in the criminal proceedings. In fact, the 25 disciplinary proceedings were initiated based on the written complaint of the informant.
50. The judgment acquitting the appellant reveals that the prosecution "miserably failed to prove its case beyond reasonable doubt" as both the informant and PW-2 refused to identify the appellant in court. This discussion confirms that the appellant's acquittal was based not on mere technicalities. In Ram Lal (supra), this Court held that terms like "benefit of doubt" or "honourably acquitted" should not be treated as formalities. The Court's duty is to focus on the substance of the judgment, rather than the terminology used.
51. That apart, it is noteworthy that in course of the inquiry PW-2 had also declined to identify the appellant during cross-examination, and the informant was not called as a witness in the disciplinary proceedings. This sort of creates a parallel between the circumstances in both the criminal and disciplinary proceedings.
52. Besides, the appellant's case is strengthened by the principle of adverse inference. It can be reasonably inferred that the respondents deliberately withheld the scanned copy of the departmental file, which was essential for us to assess whether the charges, witnesses, evidence, and circumstances in both the criminal and departmental proceedings were substantially similar or identical, likely due to concerns over the potential adverse consequences.
53. In light of the preceding discussion and the adverse presumption that is available to be drawn, we hold that the finding of the appellant being guilty of charge no. 1 cannot be sustained following his acquittal in the criminal proceedings, which seem to have involved substantially similar or identical charges, evidence, witnesses, and circumstances."
19. In view of the aforesaid observation of the Hon'ble Supreme Court in State of Uttar Pradesh through Principal Secretary, Department of Panchayati Raj, Lucknow Vs. Ram Prakash Singh (supra), there had been an objective and 26 constructive violation of principle of natural justice to the prejudice of the petitioner and the disciplinary proceedings along with its order as well as that of the Appellate Authority deserve to be quashed.
20. The charges in the Disciplinary Authority had been similar to the charges in the criminal case framed against the petitioner wherefrom the petitioner had been "honourably acquitted". Therefore, in view of the observations of the Hon'ble Supreme Court in Maharana Pratap Singh (supra), the penalty/punishment of "removal from service" imposed by the Disciplinary Authority confined by the Appellate Authority are set aside.
21. Considerable time period had lapsed and no further reference to the Disciplinary Authority consideration shall be prudent to the detriment of the petitioner. The instant case shall not act as a precedent in the peculiarity of the facts, circumstances and acts on the part of the respondents.
22. The petitioner be immediately restored to his service, if not already attained the age of superannuation. The back wages and other consequential service benefits be disbursed in his favour accordingly. Consequential reliefs, retiral benefits, pension along with back wages in case he has reached the age of superannuation be paid to him within 4 (four) weeks of communication of this order.
23. In view of the above discussions, the instant writ petition being WPA 11358 of 2019 is allowed.
24. Accordingly, the instant writ petition is disposed of. Connected application, if any, also stands disposed of.
25. There is no order as to costs.
2726. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)