C.M. Nayar, J.

1. The present appeal arises out of the judgment dated 13th March, 1987 of the learned Single Judge wherein a writ of mandamus was issued quashing the report dated 24th September, 1980 of the Inquiry Officer and order dated 31st March, 1981 of the Disciplinary Authority and order dated 23rd June, 1982 of the Visitor rejecting appeal of respondent No. 1 against the Order of compulsory retirement.

2. Respondent No. 1 in the year 1978 was Professor and the Head of the Mathematics Department of the Indian Institute of Technology (for short IIT). He had a very brilliant academic record and was a Visiting Professor at the University of Wisconsin, USA. from 1963 to 1965, Professor of Mathematics in B.I.T.S., Pilani from 1965 to 1966, Professor and Head of the Department of Mathematics of I.I.T. for three periods during the years 1966 to 1978. He was also honoured for his outstanding contribution and was recipient of Shanti Swaroop Bhatnagar Award as well as several other honours. The respondent No. 1s son, Shri Navin Jain applied for admission to M.Sc. (Mathematics) (Computer Science) Admission Test for the year 1978-79, which was to be conducted by the Department of Mathematics of I.I.T. Shri Navin Jain was eligible to make the test. It was also averred that he had a better record in Mathematics than in Physics and had secured highest marks in Mathematics in Ruia College, Bombay University Examination in the year 1977. The admission test and interview was conducted by the committees constituted by the Mathematics Department of the I.I.T. for this purpose and three committees were set up, namely, scrutiny committee, paper setting committee and interview committee. The respondent No. 1 was alleged to have drawn up a tentative list of members of the said committees. This list was required to be approved by the faculty members of the Mathematics Department and for this purpose, he had issued a circular dated 3rd July, 1978 calling for the meeting of the faculty for 6th July, 1978. The respondent No. 1 further averred that he was aware that his son was a candidate for the admission and he had disassociated himself from all the concerned committees. He further stated that a large number of faculty members including senior faculty members were on vacation and, therefore, at the time of drawing up of the tentative list of the members of the committees, all the faculty members, who were available in Bombay, were consulted. On 5th July, 1978, one member of the faculty, namely Dr. V.M. Saundalgekar made a complaint to Professor A.K. De, Director of the I.I.T., against the respondent No. 1 regarding his son being one of the candidates for the admission test. Thereupon, the Director called the respondent No. 1 and in the presence of Deputy Director told him that he should go to the faculty meeting and get its approval of the names of various members of the committees. The respondent No. 1 further alleged that be asked the Director for permission to go on casual leave with effect from 6th July, 1978 and to make alternative arrangements. The Director, however, is alleged to have told him that there was no need for him to immediately go on leave and he should conduct the faculty meeting on 6th July, 1978. At the meeting of the faculty members, the respondent No. 1 announced the names of the committee members and the said names were unanimously approved. The respondent No. 1 thereafter had nothing to do with the admission procedure. 8th and 9th July, 1978 being holidays, he went on leave from 10th to 12th July, 1978. The question paper was set up on 7th July, 1978 by a committee consisting of Dr. C.R. Marathe, Dr. R L. Batra, Dr. S.P. Bhattacharya and Dr. Jai Prakash. The written examination in the paper of Mathematics took place on 11th July, 1978 and interviews of the candidates were conducted subsequently. The son of respondent No. 1 Shri Navin Jain got 70 out of 70 marks in General Mathematics but secured only 2 marks out of 30 marks in Physics.

3. Dr. Saundalgekar made an oral as well as a written complaint on 13th July 1978 to the Director of I.I.T. to the effect that the test had not been conducted in a fair manner. It is an admitted case that on the aggregate of written test and interview marks the respondents son secured 8th position in order of merit. However, in view of the complaint only 7 candidates were granted admissions and the respondents son was not admitted to the course. The Director appointed a preliminary inquiry committee consisting of three members to go into the alleged allegations. The said committee submitted its report to the Director. Thereafter, a memorandum dated 23rd August, 1979 was served on respondent No. 1. The article of charge against the respondent No. 1 and as referred in the judgment of the learned Single Judge may be reproduced as under:

Conduct unbecoming of a Professor, thereby showing violation of letter and spirit of sub-para (a) of para 3Generalof Schedule B Conduct Rules which is quoted below:

3 General

(a) Every employee shall at all times maintain absolute integrity and devotion to duty and also be strictly honest and impartial in his official dealing.

Along with the charge-sheet was annexed a statement of imputations of misconduct. The said statement was as follows:

1. On receipt of the application for admission to M.Sc. degree course of his son Shri Navin, Prof. Jain did not voluntarily disclose to anyone the fact that his son Shri Navin was a candidate for the 1978 admission to the M.Sc. degree in his own Department. This fact came to light only through one of the faculty members of the Mathematics Department who informed the Director, about it just six days before the admission test, by which time most of the planning for the test had been completed under Prof. Jains overall guidance.

2. Prof. Jain ignored the specific directions orally given by the Director to him to disassociate himself forthwith from the entire matter of M.Sc. (Mathematics) Admission, 1978, including the matter of appointment of paper setters and Head Examiners and nominated the members for all the Committees which conducted the admission test asalso the Convenor for setting Sector A of the test paper.

3. His above described conduct has resulted in causing

(i) a significant damage to the reputation of the Institute by lowering its image in the eyes of the public insofar as the fairness of its admission procedures are concerned,

(ii) denial of admission to a few deserving candidates to the M.Sc. Programme, 1978, as a line had to be drown in all the three merit lists of admission to the three specialisations in the M.Sc. (Mathematics) programme above No. 8 which was the merit position obtained by his son through unfair means.

4. The respondent alleged that after the receipt of the charge-sheet he requested for documents but the same were not supplied. The Board of Governors of I.I.T. on 19th January, 1980 appointed Professor S.C. Bhattacharya as Inquiry Officer to scrutinise the charges against the respondent. He once again requested for documents and in his letter dated 26th February, 1980, it was inter alia stated that in the absence of the documents called for by him he was unable to reply to the charge-sheet. He received letter from Assistant Registrar, I.I.T. Shri K.S. Hegde, vide communication dated 5th March, 1980 informing him that the first meeting of the inquiry would be held on 13th March, 1980 and 14th March, 1980 respectively. The last letter also contained a list of 9 witnesses and the list of four documents which would be relied upon. The respondent No. 1 appeared before the Inquiry Officer on 13th March, 1980 and asked for some documents and also requested for some time to examine the same. He further requested that he should be permitted to be represented by a legal advisor or by a colleague. This request was not accepted and it appeared that the respondent did not participate in the inquiry and on 13th and 14th of March, 1980 the Inquiry Officer proceeded to examine the witnesses. The proceedings continued on different dates and the respondent also participated and submitted his written brief.

5. The Inquiry Officer submitted his report dated 24th September, 1980 to the I.I.T. The conclusions drawn by the Inquiry Officer, as contained in the extract of his report which was given to respondent No. 1, were as follows:

(a) Professor P.C. Jain knew perfectly well about the rules, practices, traditions of the I.I.T., Bombay. He was once reprimended by Prof. P.K. Kelkar, the then Director of the I.I.T. Bombay, for not disassociating himself from the J.E.E. for which his daughter, Snehlata Jain was a candidate.

(b) In the present case, he was correctly and timely advised by the Director, Prof. A.K. De, in the presence of Prof. R.P. Singh, Deputy Director, to completely disassociate himself from the examination, as his son was a candidate. Prof. Jain had already made the arrangements for setting the questions, constituting the committees etc. more or less, entirely on his own and in consultation with only one or two persons, near to him. He should have entrusted the entire test to another Professor in the department who could review the situation and make fresh and adequate arrangements. Prof. Jain did not do that. He informed the faculty inadequately and the arrangements made by him were executed without change. The faculty members did not actively do anything, as they wanted Prof. Jain to walk into the trap, which he did.

(c) Prof. Jain went on leave for two days, during the examination, but when none of the arrangements made by him had been altered, this posture of going on leave was an eye-wash and will not carry conviction to any.

(d) Performance of Shri Navin Jain in General Mathematics which was subsidiary subject was unusually good (70/70). On the other hand, his performance in Physics (2/30), which was his principal subject, was dismal. It is certain that he had access to the question paper on Mathematics.

(e) Dr. M.N. Gopalan as the General Co-ordinator proved inadequate for the task. Part of it was due to the fact that his colleagues in the Department did not take him seriously and failed to render him adequate help. I am convinced that the leakage of question was not through him, it must have taken place at an earlier stage.

(f) It appears obvious that Dr. R.L. Batra who was the co-ordinator for the question of Mathematics was responsible for the leakage. The question paper, at the manuscript stage, must have been given to Prof. Jain, who coached his son adequately, so that he could give an excellent performance. Lack of adequate amount of rough work in a complicated paper such as the one on Mathematics, by a student, who had mathematics as his subsidiary subject and his dismal performance in Physics, his principal subject, adds further support to this connection.

What Prof. Jain did, was highly objectionable, immoral, against the tradition of the Institute and more than that, against the established ethics of a teacher. It is a pity that a person of his distinction should have fallen a prey to this temptation The Institute Authorities should take serious notice of his lapses and take adequate action against him.

6. The report was then placed before the meeting of the Board of Governors on 29th December, 1980. A resolution was passed on that date accepting the conclusions of the Inquiry Officer. The respondent No. 1 was served with a Show-cause notice dated 27th January, 1981 from the I.I.T. in which it was stated that the report of the Inquiry Officer had been considered and it had decided to accept the findings contained therein. The respondent No. 1 was asked to Show-cause as to why the proposed penalty of compulsory retirement should not be imposed. Along with the Show-cause notice some extract of the report of the Inquiry Officer were sent to the respondent No. 1. According to the appellants, extracts of the report which were sent to the respondent No. 1 were the only ones which were relevant to his case and the omitted portions did not relate to the charge against him.

7. The respondent No. 1 sent his reply to the Show-cause notice in which he alleged that the entire proceedings before the Inquiry Officer were vitiated inter alia for the reasons that principles of natural justice had been violated and rules for holding such inquiry had been violated. The request for assistance in the Inquiry proceedings was refused by the Inquiry Officer. It. may be relevant to reproduce the following extract:

I.O.: Prof. Jain requested for assistance from a colleague or a Government Officer for presenting his case. The I.O. felt that this is neither relevant nor necessary. The Institutes presentation was made by one of his officers. Prof. Jain could present his own case himself.

8. The Board considered the respondent No. 1s reply to the Show-cause in the meeting held on 30th March, 1981 and concluded that the explanation of the respondent No. 1 was not satisfactory. The Board, therefore, decided that the penalty of compulsory retirement be imposed on the respondent with effect from the afternoon of 31st March, 1981. The impugned order of compulsory retirement reads as follows:

OFFICE ORDER NO. 717/1981

Reference reply dated 9/2/1981 from Prof. P.C. Jain with reference to the Show-cause notice issued to him on 27 January, 1981.

The Board at its Eighty sixth meeting held on 30th March, 1981, after considering carefully the reply of Prof. P.C. Jain with reference to the Show-cause notice bearing No. AO/Staff/O-343/81 dated 27th January, 1981 issued to him has arrived at the conclusion that the explanation of Prof. P.C. Jain is not satisfactory and that no satisfactory cause is shown why the proposed penalty should not be imposed upon him.

The Board therefore, decided that the penalty of compulsory retirement be imposed on Prof. P.C. Jain for the charge of conduct unbecoming of a Professor, thereby showing violation of letters and spirit of sub-para (a) of para 3General of Schedule B Conduct Rules.

In accordance with the above Boards decision Prof. P.C. Jain is retired compulsorily from the service of the Institute with effect from the afternoon of 31st March, 1981.

Sd/- DIRECTOR.

9. The request of the respondent No. 1 for reconsideration of his case was rejected on May 27, 1981 and Dr. R. Ramanna, Chairman, Board of Governors, wrote to him as follows:

I thank you for your letter dated May 22, 1991. It will be extremely difficult for us to consider your request for reappointment at IIT Bombay. If, however, you are interested in other posts, we will be happy to help you, to the extent possible.

10. The respondent No. 1 filed statutory appeal on 5th June, 1981 under Statute 13(1) of the I.I T. Statutes to the Visitor, I.I.T., Delhi. It may be stated that the President of India is the Visitor of the I.I.T. The respondent No. 1 was, however, informed by the Director vide communication dated 23rd June, 1982 that the visitor had rejected his appeal and the penalty of compulsory retirement had been upheld. This letter did not contain any reason for the said decision. Feeling aggrieved by the penalty imposed by the Board of Governors of I.I.T. and the rejection of his appeal by the Visitor, the respondent No. 1 filed writ petition under Article 226 of the Constitution of India before this Court. The plea of lack of territorial jurisdiction was raised before this Court and it was contended that the respondent No. 1 was serving at Bombay and the order imposing penalty was issued at Bombay. The learned Single Judge, however, rejected this contention and held that the Original Order merges in the appellate Order and, therefore, the writ petition is maintainable at Delhi in view of the fact that the imposition of penalty was finally upheld by the Visitor at Delhi.

11. The learned Single Judge further noticed that there was no dispute that the respondent No. 1 was not supplied with statements of those persons which had been recorded earlier, which persons subsequently appeared as witnesses during the course of the inquiry proceedings against him. In this regard, he concluded as follows:

In my opinion the non-supply of statements of persons, which had been recorded by the preliminary inquiry committee, and who were then examined as witnesses by the inquiry officer, was not warranted. Merely because those statements are not relied upon by the Department cannot be a ground for not supplying the same to the officer if the statements have some relevance to the charges against him. It is not for the Department to determine as to what documents are necessary to enable an officer to prepare his defence. It is for the officer who is charge-sheeted to determine as to what material would be relevant in preparation of his defence. It would, to my mind, be violation of the principles of natural justice if material documents are in possession of the Department and the same is not made available to the officer when he wants it and when it can be demonstrated by him that the documents so available with the Department are connected with or are relevant to the inquiry to be held against him. What was desired by the petitioner were statements of those persons who were to appear as witnesses in the inquiry against him. Those statements, to my mind, would have been very relevant to enable the petitioner to prepare his defence and to effectively examine or cross-examine such witnesses when they appeared before the inquiry officer. Therefore, where a document or statement is relevant for a defence then that statement or document has to be given or shown to the officer even if the Department has not relied upon it.

12. The learned Single Judge also referred to the fact that when the Inquiry Officer referred and relied on material which was collected behind the back of the respondent No. 1, the principles of natural justice were obviously violated. There were four members of the paper setting committee. Two of them were available and were examined by the Inquiry Officer during the course of the inquiry proceedings. Two other members were not availble and they were Dr. Marathe and Dr. Batra. The Inquiry Officer in his report has stated as follows in respect of both of them:

Dr. C.R. Marathe and Dr. R.L. Batra who were not available during the sittings of the inquiry committee, subsequently, at the request of the inquiry officer, submitted written statements which were considered by him while drawing his conclusions.

It was also not disputed what was submitted by Dr. Marathe and Dr. Batra in writing was not made available to the respondent No. 1. Therefore, the learned Judge held that the Inquiry Officer took into consideration what was stated by these persons as admitted and the same was opposed to all principles of natural justice for the Inquiry Officer to have received these material statements and not to have informed the respondent No. 1 of the contents of the same and then to have taken them into consideration.

13. In the Inquiry report it has also been stated that the Inquiry Officer had informal discussions with Prof. K.C. Mukherji, Prof. G.S. Tandolkar and Prof. C.M. Srivastava regarding the report submitted by them and also to find out from them any other additional information which might be useful to me. After that, the formal inquiry was started. The Inquiry Officer, according to the learned Single Judge, was not justified in having discussion with the aforesaid three Professors who had submitted a preliminary report in this case without the respondent No. 1 having an opportunity of knowing what was discussed between Inquiry Officer and them and without the respondent No. 1 being given anopportunity for cross-examining the said persons. The learned Judge also upheld the averment of the respondent No. 1 that he was never given a complete report of the Inquiry Officer and he referred to certain portions of the inquiry report which ought to have been communicated and serious prejudice, therefore, was caused to him by withholding the said portions of the inquiry report.

14. The learned Judge commented adversely on the refusal of the Institute to allow the respondent No 1 to be represented by a lawyer or a colleague and held that the respondent No. 1 felt handicapped in this regard and his request for assistance ought to have been granted. The writ petition accordingly was allowed and the report dated 24th September, 1980 of the inquiry and the order dated 31st March, 1981 of the Disciplinary Authority and order dated 23rd June, 1982 of the Visitor were quashed. The respondent No 1 was held entitled to immediate reinstated it with full wages and without any break in service and with all benefits, allowances, perquisites and privileges as if the impugned orders had not been passed. The appellants I.I.T. did not feel satisfied with the decision of the learned Single Judge and sought to challenge the same by means of this Letters Patent Appeal.

15. The first contention raised by the learned Counsel for the appellants is that this Court possesses no territorial jurisdiction to decide the matter. It was submitted that the respondent was serving at Bombay and the order imposing penalty was issued at Bombay. We do not find any substance in this argument as it is now well settled that the original Order merges in the Appellate order and, therefore, the writ petition was maintainable at Delhi. The respondent had sought to challenge the order of compulsory retirement by means of statutory appeal under 13(1) of the I.I.T. Statute to the Visitor I.I.T. Delhi Reference has been made by the learned Counsel to 1968 (Vol. 67) Income Tax Reports 393, Shiv Shanker Lal Gupta Khandelwal v. Commissioner of Income Tax and Others, wherein it was held that since the petitioner resided in the State of Bombay and the Income-tax Officer and the Commissioner resided there and their offices were also situated there, and the authorisation under Section 132(1) was also issued in that city, the entire cause of action arose in the city of Bombay and fell outside the jurisdiction of the Delhi High Court. It was also held that the Central Government was not a necessary party to the petition and since the petitioner himself invoked the jurisdiction of the Central Board by that device he could not be permitted to impose the jurisdiction on the Delhi High Court. The mere fact that he had filed an application before the Centre Board under Section 132(11) did not confer jurisdiction on that High Court to entertain his petition. The learned Judges after dealing with the facts held as follows:

The material facts are these: On July 9 and 11, 1966, the petitioners house and his business premises were searched by the second respondent to this petition (the First Income-tax Officer, A-III Ward, Bombay) as per the authorisation issued by the first respondent (the Commissioner of Income-tax, Bombay, City II Bombay) under Section 132(1) of the Income-tax Act, 1961. During the searches in question, several documents were seized. In addition the second respondent seized a sum of Rs. 1,17,000. It appears, a portion of the amount seized has been appropriated towards the arrears of income-tax due from the petitioner. The petitioner is challenging the validity of those searches and seizures. It may be noted that the searches and the seizures in question have taken place in the City of Bombay. Respondent Nos. 1 and 2 reside in that city. Their offices are situated in that city. Even the petitioner is residing in that city. The authorisation issued by the first respondent under Section 132(1) was issued in that city. Therefore, prima facie, the entire cause of action has arisen in the City of Bombay, that being so, the reliefs, prayed for in the petition, whether considered under sub-article (1) of Article 226 or under Sub-article (2) of Article 226, prima facie, fall outside the jurisdiction of this Court.

The above said authority is of no assistance to the appellants as in the present case the respondent No. 1 was provided a statutory right of appeal to the Visitor who was stationed in Delhi and the order of the Visitor obviously merged in the order of the disciplinary authority.

16. The next authority cited is 1968 (Vol. 70) Income Tax Reports 807, Jamshedpur Engineering and Machine Manufacturing Co. P. Ltd v. Union of India and Ors. The learned Judges in that case held as follows:

Here again, we find it difficult to uphold this submission. The order which the petitioner seeks to enforce, was made by the Income-tax Appellate Tribunal, Calcutta Bench, on December 3, 1958 and the officers to whom that order gives directions are also outside the jurisdiction of this Court. Prima facie, therefore, this Court would not have territorial jurisdiction either over the officers to whom writ is sought to go or over the cause of action from which the petitioner is feeling aggrieved. The contention that since the money realized from the petitioner has gone to the coffers of the Union of India and this Court has merely to direct the Union of India to refund the amount, has the merit of ingenuity, but appears to us to be too tenuous to sustain the plea of jurisdiction of this Court, on the facts and circumstances of the present case. The order of refund has to be made by appropriate authorities and nothing cogent has been urged to convince us that such an appropriate authority is within our jurisdiction. The technical location of the coffers of the Union of India in Delhi, is, in our opinion, too tenuous a basis for assuming jurisdiction over the controversy before us.

This case also does not in any manner support the contention of the appellants as there was no statutory appeal provided in the circumstances of that case. We may also refer to the judgment of the learned Single Judge in 1973 Rajdhani Law Reporter (Note) 14, D.W. Chitaley v. Central Board of Revenue, the learned Judge held that on consideration of the judgment in Shiv Shanker Lal v. Commissioner of Income Tax (supra) that the entire cause of action arose at Bombay and the mere filing of an application to the Central Board of Revenue at New Delhi did not give Delhi High Court jurisdiction to entertain the petition.

17. the Honble Supreme Court in Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and Others, AIR 1963 Supreme Court 1124, has dealt with the question and came to the following conclusions at page 1126:

The question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may morely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.

18 The law is, therefore, well settled that when the original order merges in the appellate order, the writ is maintainable in the High Court within whose jurisdiction the appellate authority is based. The High Court of Delhi did possess the jurisdiction to deal with the matter and there is no infirmity or illegality in the finding of the learned Single Judge on this ground. We affirm the same accordingly.

19. We may now come to the next point as to whether the respondent No 1 has been provided sufficient opportunity by the disciplinary authority to defend himself and whether the non supply of the statements on which reliance had been placed by the Department and which had been recorded by the Preliminary Inquiry Committee vitiate the inquiry for the reason that principles of natural justice had been violated and rules for holding such enquiries had not been followed. The learned Single Judge held that the non supply of statements of persons which had been recorded by the Preliminary Inquiry Committee, and who were then examined by the Inquiry Officer was not warranted.. He further concluded that it was not for the department to determine as to what documents are necessary to enable an officer to prepare his defence. It was for the officer who was charge-sheeted to determine as to what material would be relevant in preparation of his defence. There would be complete violation of the principles of natural justice if material documents are in possession of the department and the same were not available to the officer when he wants it and when it can be demonstrated by him that the document so availalbe with the department are connected with or relevant to the inquiry to be held against him. The learned Single Judge on appreciation offsets came to the conclusion that the statements would have been very relevant to enable the respondent No. 1 to prepare his defence and to effectively examine or cross-examine such witnesses when they appeared before the Inquiry Officer. It may also be noticed that the Inquiry Officer referred to and relied on material which was collected behind the back of the respondent No. 1. The inquiry report refers to the subsequent statements of Dr. C.R. Marathe and Dr. R.L. Batra to the following effect:

Dr. C.R. Marathe and Dr. R.L. Batra who were not available during the sittings of the inquiry committee, subsequently, at the request of the inquiry officer, submitted written statements which were considered by him while drawing his conclusions.

It is not in dispute that what was submitted by Dr. Marathe and Dr. Batra in writing was not made available to the respondent No. 1. Furthermore, the inquiry report also states that the inquiry officer had informal discussions with Prof. K.C. Mukherji, Prof. G.S. Tandolkar and Prof. C.M. Srivastava, regarding the report submitted by them and also to find out from them any other additional information which might be useful to me.

20. The Inquiry Officer found that the charge against the respondent No. 1 was that his conduct was unbecoming of a Professor. The conduct rules require that every employee shall at all times maintain absolute integrity and devotion to duty and also be strictly honest and impartial in his official dealings. The inquiry officer proceeded further and gave a categorical finding to the effect that there was leakage of paper and that the respondent No. 1 was informed about the paper which had been set and he had coached his son accordingly. The serious allegation was made, when such an allegation was never levelled against him in the charge-sheet. The inquiry officer went beyond the charge-sheet and gave a finding without providing sufficient opportunity to the delinquent officer to rebut the same.

21. It is also well settled that the inquiry is vitiated if the delinquent officer is able to establish prejudice caused to him by non supply of documents considered at the stage of preliminary inquiry and which ultimately resulted in the passing of the impugned order. The learned Single Judge noticed that there was no dispute that respondent No. 1 was not supplied with the statements of those persons which had been recorded earlier, which persons subsequently appeared as witnesses during the course of the inquiry proceedings against him. Reference was also made to the judgment of the Honble Supreme Court in the case of Kashinath Dikshita v. Union of India and Others, AIR 1986 SC 2118 [LQ/SC/1986/200] . The learned Single Judge has correctly quoted the following passage in his judgment which will squarely cover the case of respondent No. 1:

The extracts quoted hereinabove leave no room for doubt that the disciplinary authority refused to furnish to the appellant copies of documents and copies of statements. When a Government servant is facing a disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental inquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee predare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible:

.

.

Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for whether or not there has been a denial to afford a reasonable opportunity in the back drop of this case must substantially depend upon the facts pertaining to this matter.

The learned Judge has held that non supply of statement of persons, which had been recorded by the preliminary inquiry committee and who were then examined as witnesses by the Inquiry Officer was not warranted. These statements obviously would have been very relevant to enable the respondent No. 1 to prepare his defence and to effectively examine or cross-examine such witnesses when they appeared before the Inquiry Officer. The conclusions of the learned Single Judge are based on the admitted facts on record and the established law is clearly in favour of the respondent that there has been violation of the principles of natural justice and denial of reasonable opportunity.

22. The Honble Supreme Court in AIR 1991 (March part) SC 471, Union of India and Others v. Mohd. Ramzan Khan, has further clarified the position of law and has held as follows:

Several pronouncements of this Court dealing with Art. 311 (2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Art. 311(2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one.

There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facts do make the matter quasi-judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case (AIR 1969 SC 1294 [LQ/SC/1969/163] ), the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted, With the Forty-second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected.

Thus the matter is settled by the Honble Supreme Court. Non-supply of copies of part of the inquiry report and statement of persons whose evidence had been recorded behind the back of the respondent would vitiate the entire proceedings. The inquiry Officer also went beyond his brief to hold that there was leakage of paper and that the respondent No. 1 was informed about the paper and had coached his son accordingly. The serious allegation was made against the respondent and he was not even provided sufficient opportunity to defened himself. There is a serious allegation which has been supported by the facts of the case that the respondent was never given the complete report of the inquiry Officer and only the alleged relevant extracts of the report were annexed with the charge-sheet and supplied to him. The learned Single Judge correctly came to the conclusion and there is no error of law in the finding. that serious prejudice was caused to the respondent by withholding portions of the inquiry report. We otherwise cannot follow as to why the disciplinary authority was hesitant in supplying the complete report of the inquiry officer as well as the statement of certain witnesses to the respondent. The disciplinary authority also gravely erred in examining two witnesses behind the back of the respondent and having informal consultation with others and respondent was not confronted with the same nor he was provided sufficient opportunity in this regard. The Supreme Court has clearly held in Union of India v. Mohd. Ramzan Khan (supra) that principles of natural justice demand that the relevant documents must be supplied to the delinquent officer and the delinquent is entitled to know the material being used against him.

23. We may notice that respondent had requested to be assisted by legal adviser or one of his colleague. This request was not considered by the Inquiry Officer and in a way the same was declined. The learned Single Judge came to the conclusion that the respondent had no experience at all in examining the witnesses and no effective cross-examination had been done in his behalf. The appellants ought to have provided reasonable assistance to respondent to defend himself so that no injustice was done. Reference may be made to the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendra Nadkarni and Others, (1983) 1 SCC 124 [LQ/SC/1982/169] which lays down that refusal to grant such request would amount to denial of a reasonable opportunity to defend and the essential principles of natural justice would be violated.

24. We may also record our disapproval in the manner the respondent has been treated. It is needless to go further into the merits of the rival contentions of the parties but it is an admitted fact that the respondent had a brilliant academic career and he has been a visiting Professor at various Universities including Wisconsin University in U.S.A. He made outstanding contribution to the Mathematical Science and he was honoured jointly with Professor R. Narasimhan, with the prestigious Shanti Swaroop Bhatnagar Award. He has also been recepient of several other honours and it may not be necessary to discuss them in detail. The whole trouble started on the complaint of Dr. V.M. Saundalgekar on or about 5th July, 1978. The respondent brought to the notice of the Director that his son Shri Navin Jain was a candidate for the admission test and he wanted to go on casual leave w.e.f. 6th July, 1978. The examination for Mathematics was to be conducted on 11th July, 1973 and 8th and 9th July being holidays, the respondent went on leave from 10th to 12th July, 1978 which would indicate that he did not actively participate in any proceedings concerning his son. The Director being aware of the whole issue could have changed the examiners who were alleged to have been appointed by the respondent. He however maintained his silence and did not act in this regard. It will also be far fetched to conclude that the examiners who were eminent professors in their own right would confer undue advantage on the son of the respondent on mere asking. It is also relevant to point out that the son of the respondent derived no benefit and did not get admission in the Institute. The respondent had to go through the agony of facing the disciplinary proceedings and litigating in this Court for about nine years of the latter part of his career. The Director and other persons responsible ought to have acted when the respondent informed them about the participation of his son in the admission proceedings.

25. We see no merit in this appeal and the same is dismissed. There shall be no order as to costs.

26. The Court on 21st July, 1987 had made an interim order to the effect that out of the amount payable to respondent, under the judgment of the learned Single Judge, the amount withdrawn by the said respondent from his Provident Fund will be replenished by the appellants. The remainder of the said amount payable to respondent No. 1, less such tax are deductible at source, will be kept in fixed deposit in the name of the Registrar of this Court. The said sum kept in the fixed deposit was directed to be payable with interest in accordance with the result of this appeal. The Registrar of this Court is directed to pay the sum kept in the fixed deposit along with interest accrued thereon to respondent No. 1 in terms of order dated 21st July, 1987, after notice to the appellants.