JUDGMENT

1. The petitioner was working as supervisor (electrical), operation and maintenance, Gangavally (South), Mettur Electricity System. Pursuant to a confidential note of the Director of Vigilance and Anti-corruption, Madras, the Superintending Engineer, Mettur Electricity System, initiated disciplinary action against the petitioner for alleged corrupt practices. The Divisional Engineer, Operation and Maintenance, Tamil Nadu Electricity Board, Attur, Salem District, who was constituted as the enquiry officer, framed as many as fifteen charges against the petitioner on 9 June 1972. Of the fifteen charges, fourteen related to instances of corruption and bribery and the charge (15) related to violation of the rules in effecting supply and the instances fall within the period 1968 — 70. In this writ petition, we are not very much concerned with the details or merits of the charges. The petitioner did not submit his explanation but has preferred an oral enquiry. The oral enquiry was conducted between 14 September 1973 and 30 March 1974, and the enquiry officer submitted his findings on 1 June 1974. The enquiry officer was assisted by the Inspector of Vigilance and Anti-corruption, Salem, who was present throughout the enquiry. The petitioner engaged an advocate as the defence counsel and the counsel was present to assist the petitioner throughout the proceedings. The petitioner filed the written statement of defence after the conclusion of the examination of the prosecution witnesses and before the commencement of the examination of the defence witnesses. The charge (13) was dropped by the enquiry officer himself at the request of the prosecution. Out of the remaining fourteen charges, six charges, viz., (3), (4), (5), (11), (14) and (15) were held proved and the rest of the charges were held not proved. On the basis of the report and the findings of the enquiry officer, the first respondent, by his memo, dated 30 October 1974, came to the provisional conclusion that the petitioner should be removed from service. Accordingly, the petitioner was directed to show cause within seven days from the date of the receipt of the said memo as to why he should not be removed from service. The petitioner submitted a very detailed explanation to this show-cause notice. In this explanation the petitioner pointed out very many procedural errors which, according to him, have vitiated the enquiry. Besides, the petitioner touched upon in detail the merits of the charges found against him and obviously wanted the punishment proposed to be dropped. This explanation of the petitioner runs to pages. The first respondent thought fit to obtain the further remarks from the enquiry officer on an analysis of the points raised by the petitioner in his explanation and the enquiry officer, in a very detailed note, analyzed the points raised by the petitioner which analysis practically amounted to a rebuttal of the allegations put forth by the petitioner in his explanation and this note of the enquiry officer also runs to several pages. Admittedly, this note of the enquiry officer which has taken the shape of further remarks and report of the enquiry officer was not communicated to the petitioner and the first respondent came to the final conclusion that the punishment of removal from service should be imposed on the petitioner and accordingly, by order, dated 17 February 1977, removed the petitioner from the service of the Tamil Nadu Electricity Board from the date of the receipt of the memo. It was only along with this order, dated 17 February 1977, the further note-cum-report of the enquiry officer on the explanation of the petitioner was forwarded to the petitioner. The petitioner exhausted the remedy of an appeal to the second respondent which was not fruitful and the second respondent rejected the appeal of the petitioner by order, dated 4 March 1978. The petitioner challenges the orders of the respondents in the present writ petition.

2. Sri K.K Venugopal, learned counsel appearing for the petitioner, would attack the orders of the respondents from three angles. I will deal with them one by one, taking into consideration the submissions made by the learned counsel appearing for the respondent also in this regard. The first grievance expressed on behalf of the petitioner is that the second note and report of the enquiry officer obtained by and punishing authority, after he provisionally came to the conclusion that the petitioner should be removed from service and which note and report has obviously weighed with the punishing authority in passing the ultimate order was not communicated to the petitioner and this contravenes one of the principles of natural justice, viz., that nobody should be condemned unheard. It is true that Art. 311 of the Constitution of India as such cannot be invoked in the instant case, because the service in question does not come within the purview of the said article. But it is conceded that the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations practically adumbrate the principles laid down by Art. 311 of the Constitution of India both in letter and spirit. The punishing authority, the first respondent herein, made it clear in his ultimate order, dated 17 February 1977, that he has agreed with the remarks of the enquiry officer called for and obtained after the petitioner offered his explanation to the show-cause against the proposal to impose the punishment of removal from service. As pointed out earlier, the note or remarks which has taken the shape of a further report of the enquiry officer runs to several pages and deals in seriatim with the explanation and objections by the petitioner in his show-cause to the provisional conclusion. If these remarks have been taken into consideration by the punishing authority, the first respondent herein, it is needless to stress that these remarks ought to have been furnished to the petitioner so that he may have had knowledge as to what had been taken into consideration against him even with reference to the matter of imposing punishment and if necessary, make further submissions thereon. In the said circumstances, it is to be held that the petitioner was condemned unheard in relation to a matter taken into consideration against him. Even with reference to taking into consideration the recommendations of the enquiry officer the Supreme Court discountenanced such a procedure and held that the requirement of a reasonable opportunity was not satisfied unless the entire report of the enquiry officer including his views in the matter of punishment is disclosed to the delinquent servant. This is clear from the pronouncement of the Supreme Court in State of Gujarat v. R.G Teredesai [(1969) 2 SCC 128 : A.I.R 1969 S.C 1294], Koshal, J., as he then was, in A. Chengalvarayan v. Chief Engineer, Highways and Rural Works, Madras, [Writ Petition No. 6580 of 1973, dated 15 July 1976], dealt with an order of dismissal from service which was passed only on the basis of the recommendations of the Public Service Commission and of the Chief Engineer, both of which were made after the petitioner had sent his reply to the last show-cause notices, without these recommendations having been communicated to the petitioner and without his having been asked as to what he had to say to them. The learned Judge applied the ratio of the Supreme Court in State of Gujarat v. R.G Teredesai (vide supra), and held that such an order has got to be struck down on the ground that the principles of natural justice have been violated.

3. The learned counsel for the respondents would state that the note and the remarks of the enquiry officer obtained after second show cause cannot partake the character of a second report by the enquiry officer and they are only comments on the explanations offered by the petitioner to the second show-cause notice. This is not factually correct. As stated above, this note and remarks of the enquiry officer deals with the points raised by the petitioner in his explanation to the second show-cause notice as has been done by the enquiry officer only and the grievance expressed by the learned counsel for the petitioner that the punishing authority has abdicated his functions seems to be justified. There appears to be no independent application of the mind of the punishing authority to the points raised by the petitioner in his explanations and he has merely agreed with the remarks obtained from the enquiry officer to the explanation of the petitioner. This is improper and more so when the note and the remarks of the enquiry officer which have weighed with the punishing authority have not been forwarded to the petitioner.

4. The learned counsel for the respondent further urges that the petitioner has not expressed such a grievance in the appeal petition to the second respondent and this demonstrates that the petitioner was not put to any prejudice by the procedure adopted by the first respondent. If the principle that no man shall be condemned without being put on notice of the material on which an order of condemnation is going to be made is violated, the mere fact that no specific ground has been taken in an appeal petition to the appellate authority will not bring amelioration to the procedure adopted which stands deprecated as violative of the principles of natural justice.

5. In dealing with a case where no opportunity was ever given to the person to make good his contention that the offence was committed unwittingly and by inadvertence, a Division Bench of this Court consisting of Rajamannar, C.J and Panchapakesa Ayyar, J. in Collector of Customs v. A.H.A Rahiman [A.I.R 1957 Mad. 495], upheld the contention that such an order must be deemed to be a nullity and the fact that three was an appeal to the appellate authority which refused to interfere would not prevent this Court from quashing the order of the Collector. The learned Chief Justice who delivered the judgment of the Bench, characterized such an order as void ab initio and observed that when an order of an inferior Tribunal is a nullity, the order on appeal therefrom cannot be of greater validity.

6. In S.L Kapoor v. Jagmohan [(1980) 4 SCC 379], the Supreme Court observed as follows on the question of prejudice on account of non-observance of natural justice:

“It was important that the parties should not only be given justice, but, as reasonable men, know that they had justice or to use the time-hallowed phrase that ‘justice should not only be done but be seen to be done.’ In R. Thamos, Magistrate's Court, Ex. P. Palamis [(1974) 1 W.L.R 1371], the applicant obtained an order of certiorari to quash his conviction by a Stipendiary Magistrate on the ground that he had not had sufficient time to prepare his defence. The Divisional Court rejected the argument that in its discretion, it ought to refuse relief, because the applicant had no defence to the charge:

‘it is again absolutely basic to our system that justice must not only be done but must manifestly be seen to be done. If justice was so clearly not seen to be done as on the afternoon in question here, it seems to me that it is no answer to the applicant to say. ‘Well even if the case had been properly conducted, the result would have been the same.” that is mixing up doing justice with seeing that justice is done.’ (Per Lord Widgery, C.J, at page 1375.)

In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudicial to any man, and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.”

Keeping in mind the above principles, I find that the submissions of the learned counsel on the first point require recognition and acceptance and that ground of attack has got to be sustained.

7. The next ground urged by the learned counsel for the petitioner for challenging the orders of the respondent is that the charges held proved and, in respect of which the punishment of removal from service has been passed against the petitioner, relate to the periods 1968 to 1970 and the initiation of disciplinary proceedings by issuance of the charge memo came to be done only on 9 June 1972, and this delay has caused prejudice to the petitioner and on this ground also there is a warrant for quashing the orders of the respondent. It is pointed out that the petitioner wanted the travelling allowance bills for 1968–69 and the said travelling allowance bills could not be traced. Equally so, he wanted his casual leave applications in respect of his leave period from 12 to 16 January 1969, and they were also reported to be not available. If these records were available, how far the petitioner would have successfully resisted the disciplinary action and the imposition of the penalty of removal from service is a matter which cannot be judged at this stage. But, the fact remains that the petitioner was disabled from putting forth his defence effectively on some of the charges levelled against him. If the materials called for were available and there had not been delay in the initiation of disciplinary proceedings, the possibility of the petitioner demonstrating the futility and untenability of the charges cannot be completely ruled out. It is true that the delay in the initiation of the disciplinary proceedings, by itself will not in all cases constitute a denial of a reasonable opportunity to show cause.

8. In Mohanbhai Dungarbhai Parmar v. Y.B Zala [1979 — II L.L.N 344], M.P Thakkar, J., of the Gujarat High Court, dealt with a case of initiation of departmental proceedings against a police constable on the allegation that on one occasion he had remained absent in the morning parade and on some other occasions he was found absent when roll-call was taken during the course of one month and in that ease the departmental proceedings came to be initiated after one and a half years delay. On the facts of that case, the learned Judge held that the very delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself and that would amount to violation of principles of natural justice and the impugned order must be struck down on this ground alone.

9. In the instant case, the major charges relate to instances of corruption and bribery, — obviously, the endeavour of the petitioner was to come out unscathed of the said charges. According to the petitioner, the non-availability and consequently the non-production of the documents which he wanted have heavily told upon his defence and crippled his opportunity of defence. If the disciplinary proceedings had come to be initiated without delay, might be the records would have been available and on the basis of the said records, different consequences would have followed. The fact remains that the petitioner has been put to prejudice by the delay in the initiation of the disciplinary proceedings against him. This factor cannot be omitted to be taken note of while testing the tenability or otherwise of the orders passed by the respondents, and in my view, this ground of attack has also got to be sustained.

10. Thirdly, it is urged that after the enquiry officer submitted his first report on the basis of which the provisional conclusion was reached and the second show-cause notice issued, the punishing authority had no business to consult the enquiry officer once again and this second consultation with the enquiry officer is not within the contemplation of the Tamil Nadu Electricity Board Employees' Discipline and Appeal Regulations, and cannot be countenanced on the general principles also. When there is a mandate to consult a body, the omission to consult the same will amount to a violation of the same. Equally so, the said mandate will stand violated if some other body is consulted. This principle has been recognized in Chandra Mohan v. State of Uttar Pradesh [A.I.R 1966 S.C 1987]. The said principle has no application to the facts of the present case. The enquiry culminated in the submission of the report of the enquiry officer. The enquiry officer's report was forwarded to the petitioner. The petitioner submitted his explanations, attacking the procedure adopted by the enquiry officer. The punishing authority would have proceeded to assess the explanations on the basis of the materials furnished by the enquiry proceedings. If the punishing authority felt an ambiguity and wanted first hand Information and comments from the enquiry officer whose proceedings should form the basis for the ultimate order to be passed, I do not think there is anything wrong in the punishing authority asking for the comments of the enquiry officer on the explanations offered by the petitioner. That would furnish him with further materials in respect of the very same proceedings. It is one thing to say that the second report of the enquiry officer ought to have been furnished to the petitioner before the ultimate order came to be passed and it is quite another thing to say that the punishing authority ought not to have called for the comments by the enquiry officer at all. The latter is not something alien to the disciplinary proceedings and must be deemed to be a continuation thereof. Hence, I am not able to appreciate and accept the contention of the learned counsel for the petitioner.

11. As I have countenanced the first two grounds of attack urged by the learned counsel for the petitioner, I am obliged to interfere in writ proceedings and accordingly, this writ petition is allowed. But, there will be no order as to costs.