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Thursday, November 24, 2016

principles of natural justice have been violated after submission of the inquiry report dated 29.12.2007 all proceedings taken by the Disciplinary Authority after 29.12.2007 have to be set aside = H.P. STATE ELECTRICITY BOARD LTD Vs. MAHESH DAHIYA-2016 NoV.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.10913 OF 2016
                  (ARISING OUT OF SLP(C) NO. 25742 OF 2015)

 BOARD LTD.                                   .... APPELLANT


MAHESH DAHIYA                                    .... RESPONDENT



      Leave granted.
2.    This  Appeal  has  been  filed  by  H.  P.  State  Electricity  Board,
questioning  the judgment of Division Bench of Himachal Pradesh  High  Court
dated 09.04.2015 in LPA No. 340 of 2012. Letters Patent Appeal was filed  by
appellant against the judgment and  order  of  learned  Single  Judge  dated
09.04.2012 in Writ Petition CWP No.522 of 2010 by which  judgment  the  writ
petition filed by the respondent challenging  the  order  of  punishment  of
compulsory  retirement  as  well  as  order  of  the  Appellate   Authority,
dismissing the appeal were set-aside with direction to  reinstate  the  writ
petitioner  forthwith  with  all  consequential  benefits.  Board  was  also
directed to open the sealed cover and promote the  writ  petitioner  to  the
post  of  Superintending  Engineer,  if  he  is  found   suitable   by   the
Departmental Promotion Committee. The brief  facts  necessary  for  deciding
this appeal are:

      The appellant shall be referred to  hereinafter  as  'Board'  and  the
respondent as the 'writ petitioner'.  The   writ  petitioner,  a  native  of
District  Rohtak,  Haryana  was  appointed  as  Assistant  Engineer  in  the
Corporation in the  year  1983.  He  was  promoted  as  Assistant  Executive
Engineer in 1989. He was sent on deputation  to  the  Rural  Electrification
Corporation of India and posted at Delhi. In the year 2005, writ  petitioner
was repatriated and posted at H.  P.  State  Electricity  Board,  Shimla  as
Senior Executive Engineer. After repatriation, he remained on leave for  103
days. On 04.06.2005, writ petitioner was admitted in IGMC  Hospital,  Shimla
from where, he  was  discharged  on  16.06.2005.  Writ  petitioner  obtained
fitness certificate on 23.07.2005 from IGMC Hospital and joined  his  duties
on  25.07.2005.  After  joining,  he   submitted  leave   application   upto
23.07.2005 for post-facto sanction which was granted.  On  30.07.2005,  writ
petitioner submitted a leave application on medical ground  with  permission
to  leave  station.  Without  awaiting  for  sanction  of  the  leave,  writ
petitioner left the station.  With  reference  to  leave  application  dated
30.07.2005 submitted by the writ  petitioner, he  was  advised  vide  letter
dated 25.08.2005 of the Chief Engineer to appear before the  Medical  Board.
The  Chief  Medical  Officer  D.D.U.  Hospital,  Shimla  was  requested   to
constitute a Medical Board to examine and confirm about the  illness.   Writ
petitioner was advised that joining will be accepted only on  production  of
the medical certificate of the Medical Board.  The letter was  sent  to  his
hometown Rohtak. When nothing was  heard  from  writ  petitioner,  telegrams
were further sent on 07.09.2005, 30.09.2005 and 21.10.2005, asking the  writ
petitioner  to  appear  before  the  Medical  Board.  On  30.09.2005,   writ
petitioner  was  also  given  warning  that  disobedience  will  invite  the
disciplinary action.  Lastly,  on  02.12.2005,  writ  petitioner  was  again
directed to appear  before  Medical  Board,  Shimla  otherwise  disciplinary
action will be initiated and the matter has been viewed seriously  by  Board
authorities.  Writ  petitioner  did  not  appear  before  the   Board,   and
consequently, he was placed under suspension by order dated 21.01.2006.  The
writ petitioner obtained a Medical-cum-Fitness Certificate from  Rohtak  and
he visited IGMC Shimla on 18.02.2006 for obtaining  a  Medical  Certificate.
IGMC Shimla  issued a medical  certificate  on  18.02.2006.  Joining  report
dated 20.02.2006 was submitted  before  the  Superintending  Engineer  (Op.)
Circle, HPSEB. Writ petitioner on 27.02.2006 submitted a representation  for
revocation of his suspension.

3.    The Board decided to hold a disciplinary proceeding against  the  writ
petitioner under Rule 14 of CCS(CCA) Rules, 1965  (hereinafter  referred  to
as 'Rules'). A Memo and Article of Charge dated  21.09.2006  was  served  on
the writ petitioner. Writ petitioner submitted a reply  to  the  charges  on
15.10.2006. An Inquiry Officer was appointed by Disciplinary  Authority  who
conducted the inquiry. In the  inquiry  the  department  has  produced  oral
evidence of two witnesses, namely, Mr. S. D. Rattan, Director  (Comm.)  (PW-
1) and  Shri Brij  Lal  Kiashta  Section  Officer  (PW-2).  writ  petitioner
produced P.C. Sardana, retired Chief Engineer as  defence  witness.  Various
documents were produced by the department  and  the  Inquiry  Officer  after
holding  eight  hearings  submitted  an  inquiry  report  dated  29.12.2007.
Inquiry Officer in his report  after  considering  the  evidence   held  the
charge proved by stating the following:
      “Therefore, in my opinion Delinquent Officer  failed  to  comply  with
the direction of his superiors for appearing before the  Medical  Board.  As
such the charge leveled  against  Er.  Dahiya  stands  proved  that  he  has
willfully absented     himself from official duties and  has  disobeyed  the
directions of his superiors.
      Charge No.1 Proved.”

4.     The  Disciplinary  Authority-cum-Whole  Time  Members  of  the  Board
considered the inquiry report on 25.02.2008 and took following decision:
“The findings of the Enquiry Report were accepted by  the  WTM  and  it  was
decided toaward major  penalty  of  removal  from  service  after  following
proper codal formalities.”
5.    By  letter  dated  02.04.2009,  a  copy  of  the  inquiry  report  was
forwarded to the writ petitioner, asking him to  submit  his  representation
within fifteen days. Writ petitioner submitted  a  reply  dated  15.04.2008.
Apart from other pleas, it was also stated that  writ  petitioner  had  been
supplied the decision of Whole Time Members of the Board where  findings  of
the inquiry report have been accepted and it  was  decided  to  award  major
penalty of removal from service. The Disciplinary Authority  considered  his
explanation dated 15.04.2008 and came to the opinion  that  charges  against
the writ petitioner are  proved,  and  a  penalty  of  removal  be  imposed.
However, before imposing the penalty an opportunity was provided to  make  a
representation  within  fifteen  days  by  order  dated   06.07.2009.   Writ
petitioner submitted a representation on 21.07.2009. Disciplinary  Authority
passed an order dated  21.08.2009.  Disciplinary  Authority  considered  the
representation dated 21.07.2009 and took a  decision  to  compulsory  retire
the writ petitioner and his period of absence was  to  be  treated  as  dies
non. Against the  order  communicated  vide  order  dated  25.08.2009,  writ
petitioner filed an appeal on 09.09.2009 which appeal was dismissed  by  the
Appellate Authority vide its order dated 10.12.2009. Aggrieved by the  order
dated 25.08.2009 and 09.09.2009, writ petitioner  filed  the  writ  petition
before learned Single Judge which writ petition had been allowed  by  Single
Judge by order dated  09.04.2012,  challenging  the  said  judgment  Letters
Patent Appeal was filed which too has been dismissed. Division Bench,  while
dismissing the appeal came to the conclusion that Inquiry  Officer  and  the
Disciplinary Authority have  violated  the  principle  of  natural  justice,
hence, the appeal deserved to be  dismissed.  Appellate  Court  had  further
observed  that  Inquiry  Officer,  while  submitting  his  report  has   not
discussed the statement of the defence witnesses who supported the  case  of
the writ petitioner.

6.    Learned  Single  Judge  and  the  Division  Bench  both  came  to  the
conclusion that copy  of  the  inquiry  report  was  supplied  to  the  writ
petitioner on  02.04.2008  whereas   Disciplinary  Authority-cum-Whole  Time
Members of the Board had already made  up  their  mind  to  impose  a  major
penalty on the writ petitioner  even  without  supplying  the  copy  of  the
inquiry report which has prejudiced the writ petitioner. The learned  Single
Judge has also  held  that  Disciplinary  Authority  failed  to  prove  that
absence from the duty was willful nor any such findings have  been  recorded
by the Inquiry Officer, whereas,  the  writ  petitioner  has  submitted  the
medical certificate to prove that he was suffering from  Tuberculosis(T.B.).
Learned Single Judge had also issued notice to Doctor Sharma of  Rohtak  who
had issued the certificate to the writ petitioner who  appeared  before  the
learned Single Judge and proved his certificate.

7.    This court issued notice on 31.08.2015 and has also  stayed  operation
of the judgment dated 09.04.2015.

8.    Learned counsel for the appellant in support of appeal  contends  that
Article of Charge against writ petitioner  consisted  two  parts  of  charge
i.e. (i) Willful absentation from official duty  and   (ii)  disobeying  the
directions of the superiors. He submitted that even if  it  is  assumed  for
the arguments sake that writ petitioner was absent from his official  duties
on account of the illness, there is  no  answer  to  the  second  charge  of
disobedience of the directions of  the  superiors.  He  contends  that  writ
petitioner submitted an application  on  30.07.2005  for  grant  of  medical
leave  with  seeking  permission  to  leave  station  and  without  awaiting
sanction of the leave had left Shimla and continued to be  absent  for  more
than six months without  leave  having  been  sanctioned  and  in  spite  of
written  order  from  the  Chief  Engineer  dated  25.08.2005,   07.09.2005,
30.9.2005, 21.10.2005 and 02.12.2005 failed to  appear  before  the  Medical
Board disobeying the orders.

9.    He submitted that the charge  regarding   disobedience  of  orders  of
superiors having been proved in the  inquiry,  there  is  no  error  in  the
punishment  awarded  on  the  writ  petitioner.  He  submitted  that  entire
proceeding before the Inquiry Officer and the  Disciplinary  Authority  were
conducted in accordance with principle of natural justice.  A  copy  of  the
inquiry report was duly served to the  writ  petitioner  and  he  was  given
opportunity to represent against the inquiry report. He submitted  that  the
mis-conduct on behalf of  such senior officer cannot be  condoned  and  both
the Courts  below  committed  error  in  setting-aside  the  orders  of  the
punishment and directing the reinstatement with all consequential benefits.

10.   Learned counsel for the respondent submitted that  there  being  ample
material on record to indicate  that  writ  petitioner  was  suffering  from
tuberculosis, his absence from duty cannot be said to be  willful  and  such
absence is not mis-conduct on which punishment can be  awarded.  He  further
submitted that writ petitioner could not appear  before  the  Medical  Board
due to his continued illness, which cannot be taken as factor  against  writ
petitioner. He submitted that there was violation of  principle  of  natural
justice in the proceeding as have found by courts below. Present is not  the
case in which this Court may interfere with the judgment of High Court.

11.   We have considered the submission  of  the  learned  counsel  for  the
parties and perused the records.

12.   The Division Bench  after  referring  to  several  judgments  of  this
court,  which  we  shall  notice  hereinafter  recorded  its  conclusion  in
paragraph 33, 34, 36 and 37 which are to the following effect:
“33.  Applying the test to the instant      case,  admittedly,  the  Inquiry
Officer has not  discussed the evidence of the defence witness, who   though
 was  a senior   officer of the writ respondent-appellant.”

“34.  The specific  case  of  the   writ  petitioner  is  that  the  Inquiry
Officer/WTM and the Disciplinary Authority have violated the  principles  of
natural justice and    had made up a mind to  remove  the  writ  petitioner-
respondent herein from service and to throw him out,  even  without  hearing
him. Meaning thereby   prejudice has been caused to  the   writ  petitioner-
respondent herein.”

“36.  Applying the test to the instant case, one  comes  to  an  inescapable
      conclusion that the Inquiry Officer  and  the  Disciplinary  Authority
have violated the principle of natural justice.”

“37.  In view of the discussions made hereinabove, no case for  interference
is made  out.   Accordingly,  the  appeal  is  dismissed  and  the  impugned
judgment  is  upheld  for  the   reasons   recorded   hereinabove.   Pending
applications, if any, are also disposed of.”

13.   The learned Single Judge heavily relied on the fact that the  copy  of
the inquiry report was sent  along-with  letter  dated  02.04.2008,  whereas
Disciplinary Authority-cum-Whole Time Members  had  already  made  up  their
mind to impose a major penalty. It shall be useful to   refer  to  following
observations of learned Single Judge made in para 18 and 19:
“18.  The facts do disclose that WTM had made up  a  mind  to  pass  removal
order  without  hearing  the  writ  petitioner.  The  grounds  (G)  and  (H)
contained in     the  writ  petition  have  not  been  denied  by  the  writ
respondent-appellant   herein     specifically, thus, admitted. It  stand  s
corroborated and proved by the    statement of Dr.  Brij  Sharma.  Abovesaid
facts read with order, dated 03.1.2011, passed by       the  learned  Single
Judge are factors leading to the conclusion that the  absence  of  the  writ
petitioner was not deliberate or willful,    but was beyond his control.”

“19.        The writ petitioner has filed rejoinder and  has  explained  all
circumstances which  have  been  taken  as  grounds  by  the  appellant-writ
respondent in the reply for conducting the inquiry and imposing the  penalty
upon the writ writ petitioner-respondent.”

14.   The charge against the writ petitioner as framed was to the  following
“That the  said  Er.  Mahesh  Dahiya  while  functioning  as  Sr.  Executive
Engineer [Elect] in the office of the Chief Engineer (Comm.] HPSEB,  Shimla-
4 during    the period from 2005-06 proceeded  on  leave  on  30.07.2005  on
medical ground.  Er. Dahiya was  repeatedly  directed  vide  Chief  Engineer
[Comm.] HPSEB, Shimla-4 letter dated 25.08.2005, 07.09.2005, 26.10.2005  and
02.12.2005 to    appear before the Medical Board but  Respondent  failed  to
do so. Thus, Dr.       Dahiya has willfully absented himself  from  official
duties and has disobeyed the directions of  his  superiors.  Respondent  has
therefore acted in a manner  which  is  unbecoming  of  an  officer  of  his
status. The said  Er. Mahesh  Dahiya,  Sr.  Executive Engineer [Elect.]  has
thus violated the provisions  of  Rule-3[1](i)(ii)   (iii)  of  CCS  Conduct
Rules, 1964 and which made him liable for disciplinary action under  Rule-14
of CCS[CCA] Rules-1965.”

15.  From the facts of the present  case,  it  is  clear  that  disciplinary
proceedings were  initiated  against  the  writ  petitioner,  after  he  has
submitted an application on 30.07.2005  for  grant  of  medical  leave  with
permission to leave the station.  According  to  Rule  7  of  Central  Civil
Services  Leave Rules, leave cannot be claimed as of right Rule 7 is  as  to
the following effect:
“7.Right to leave

(1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind  may
be refused or revoked by the authority competent to  grant  of  it,  but  it
shall not be open to that authority to alter  the  kind  of  leave  due  and
applied for except at the written request of the Government servant to.”

16.   It has also come on record  that  application  for  leave  on  medical
ground dated 30.07.2005 was not supported by  any  medical  certificate  and
medical certificates from Rohtak and IGMC Shimla which have been claimed  by
the writ petitioner, were claimed to have been submitted  after  20.02.2006,
after the writ  petitioner  was  placed  under  the  suspension.   The  writ
petitioner who was a senior officer in  the  H.  P.  Electricity  Board  was
asked to  appear  before  the  Medical  Board  in  reference  to  his  leave
application dated 30.07.2005. The sequence of events  indicates  that  first
letter was written by  the  Chief  Engineer  directing  writ  petitioner  to
appear before the Medical Board on  25.08.2005  and  thereafter  there  have
been repeated telegrams and directions to appear before  the  Medical  Board
and warning was also issued on  30.09.2005  that  disobedience  will  invite
disciplinary action.

17.   The charges, which have been leveled against the writ petitioner  were
in  two  parts,  as  noted  above  i.e.  willful  absence  from  duties  and
disobedience of the orders of the superiors. Learned counsel  for  appellant
confined his submission only to second charge that is  willful  disobedience
of superior  officers. He submitted that, even if, on account of illness  of
the writ petitioner, his absence is not treated as willful, the second  part
of the charge is fully proved in the  inquiry.   During  the  inquiry,  writ
petitioner was also asked, as to whether,  at  any  point  of  time  he  has
requested for constitution of a Medical Board  at  Rohtak  which  suggestion
was replied in negative by him. As noted above, the Division Bench  in  para
31 to 33 has come to  the  conclusion  that  the  Inquiry  Officer  has  not
discussed the evidence of defence  witnesses.  The  report  of  the  Inquiry
Officer has been brought  on  record  as  annexure  P-7,  only  one  defence
witness appeared, namely, Engineer P. C. Sardana.  In  the  inquiry  report,
the statement of P. C. Sardana was specifically noted in following words:
“Defence witness Er.P. C. Sardana Retd. Chief Engineer  intimated  that  Er.
Dahiya was suffering from Tuberculosis during June/July, 2005.  Er.  Sardana
was also intimated that Er.  Dahiya  showed  his  inability  to  attend  his
superannuation, farewell party as he had to rush to hospital for check up.”

18.   Having noticed  by  the  Inquiry  Officer  the  statement  of  defence
witness, the Division Bench was not correct in its conclusion  that  defence
was not considered. The Inquiry Officer in his report has  extracted  entire
statement of Er. P.C. Sardana. The defence  witness  has  only  stated  that
30th July was his last day in the office on which date the  writ  petitioner
has expressed  his  inability  to  attend  farewell  party  since  the  writ
petitioner had to go to Hospital for check up. The charges against the  writ
petitioner were all based on events subsequent to making  leave  application
on 30th July, 2005. We, thus, do not  find  any  infirmity  in  the  Inquiry
Officer's report in respect to consideration of evidence of defence  witness
Er. P.C. Sardana.

19.  The Division Bench further in para 36, as noted above has come  to  the
conclusion that Inquiry  Officer/Disciplinary  Authority  has  violated  the
principle of natural justice, but  nothing  has  been  referred  to  in  the
judgment, either of the Division Bench or learned Single Judge that how  the
principle of natural justice have been  violated  by  the  Inquiry  Officer.
Before Inquiry Officer, both parties led  oral and documentary evidence  and
were heard. The observation of the Division Bench that natural  justice  has
been violated by the Inquiry Officer is based on no materials.

20.   The basis of coming to the conclusion by  both  learned  Single  Judge
and  the  Division  Bench  that  Disciplinary  Authority  has  violated  the
principle of natural justice is based on the fact that although the  inquiry
report was sent to the writ  petitioner  by  letter  dated  02.04.2008,  the
Disciplinary Authority-cum-Whole Time  Members  have  already  came  to  the
opinion on 25.2.2008 that writ petitioner be punished  with  major  penalty.
The Division Bench of the High Court has placed reliance on Union  of  India
and others v. R. P. Singh 2014 AIR SCW 3475.

21.   In the above case the issue was, as to whether non-supply of the  copy
of advise of U.P.S.C. to delinquent officer at pre-decision  stage  violates
the principle  of  natural  justice.  This  Court  placed  reliance  on  the
Constitution Bench  judgment  in  Managing  Director,  ECIL,  HYDERABAD  AND
OTHERS Versus B. KARUNAKAR AND  OTHERS  (1993)  4  SCC  727  and  laid  down
following in para 23:
“23. At this juncture, we would like to give our reasons for our  respectful
concurrence  with  S.K.  Kapoor  (supra).  There  is  no  cavil   over   the
proposition that the language engrafted in Article 320(3)(c) does  not  make
the said Article mandatory. As we find, in the T.V.Patel's case,  the  Court
has based its finding on the language employed in Rule 32 of the  Rules.  It
is not in dispute that the said Rule from the very inception is  a  part  of
the 1965 Rules. With the  efflux  of  time,  there  has  been  a  change  of
perception as  regards  the  applicability  of  the  principles  of  natural
justice. An inquiry report in a disciplinary proceeding is  required  to  be
furnished to the delinquent  employee  so  that  he  can  make  an  adequate
representation explaining his own stand/stance. That is what  precisely  has
been laid  down  in  the  B.Karnukara's(AIR  1994  SC  1074)  case.  We  may
reproduce the relevant passage with profit: -

 “Hence it has to  be  held  that  when  the  enquiry  officer  is  not  the
disciplinary authority, the delinquent employee has a  right  to  receive  a
copy of the enquiry  officer’s  report  before  the  disciplinary  authority
arrives at its conclusions with regard to the  guilt  or  innocence  of  the
employee with regard to the charges levelled against him. That  right  is  a
part of the employee’s right to defend himself against the charges  levelled
against  him.  A  denial  of  the  enquiry  officer’s  report   before   the
disciplinary authority takes its decision on the charges,  is  a  denial  of
reasonable opportunity to the employee to  prove  his  innocence  and  is  a
breach of the principles of natural justice.””

      There can be no dispute to the  above  preposition.  The  Constitution
Bench in Managing Director, ECIL, HYDERABAD AND OTHERS Versus  B.  KARUNAKAR
AND OTHERS (1993) 4 SCC 727 after elaborately considering the  principle  of
natural justice in  the  context  of  the  disciplinary  inquiry  laid  down
following in para 29, 30 (iv)(v):
      “29. Hence it has to be held that when the enquiry officer is not  the
Disciplinary Authority, the delinquent employee has a  right  to  receive  a
copy of the enquiry  officer's  report  before  the  Disciplinary  Authority
arrives at its conclusions with regard to the  guilt  or  innocence  of  the
employee with regard to the charges levelled against him.  That right  is  a
par t of  the  employee's  right  to  defend  himself  against  the  charges
levelled against him.  A denial of the enquiry officer's report  before  the
Disciplinary Authority takes its decision on the charges,  is  a  denial  of
reasonable opportunity to the employee to  prove  his  innocence  and  is  a
breach of the principles of natural justice.”

      “30.  “(iv). In the view that we have taken, viz., that the  right  to
make representation to  the  disciplinary  authority  against  the  findings
recorded in the enquiry report is an integral part  of  the  opportunity  of
defence against the charges  and  is  a  breach  of  principles  of  natural
justice to deny the said right, it is only appropriate  that  the  law  laid
down in Mohd. Ramzan case should apply to employees  in  all  establishments
whether Government or non-Government, public or private. This  will  be  the
case whether there are rules governing the disciplinary  proceeding  or  not
and whether they expressly prohibit  the  furnishing  of  the  copy  of  the
report or are silent on the subject.  Whatever  the  nature  of  punishment,
further, whenever the rules require an inquiry to be  held,  for  inflicting
the punishment in question, the delinquent employee should have the  benefit
of the report of the  enquiry  officer  before  the  disciplinary  authority
records its findings on the charges levelled  against  him.  Hence  question
(iv) is answered accordingly.”

“(v). The next question to be answered is what is the effect  on  the  order
of punishment when the report of the enquiry officer  is  not  furnished  to
the employee and what relief should be granted to him  in  such  cases.  The
answer to this question has to be relative to the punishment  awarded.  When
the employee is dismissed or removed from service and  the  inquiry  is  set
aside because the report is not furnished to him, in  some  cases  the  non-
furnishing of the report may have prejudiced  him  gravely  while  in  other
cases it may have made no difference to the ultimate punishment  awarded  to
him. Hence to direct reinstatement of the employee with  back-wages  in  all
cases is to reduce the rules of justice to a mechanical ritual.  The  theory
of reasonable opportunity and the principles of natural  justice  have  been
evolved to uphold the rule of law and to assist the individual to  vindicate
his just rights. They are not incantations to be invoked  nor  rites  to  be
performed on all and sundry occasions. Whether in fact, prejudice  has  been
caused to the employee or not on  account  of  the  denial  to  him  of  the
report, has to be considered on the facts and circumstances  of  each  case.
Where, therefore, even after the furnishing  of  the  report,  no  different
consequence would have followed, it would be  a  perversion  of  justice  to
permit the employee  to  resume  duty  and  to  get  all  the  consequential
benefits. It amounts to rewarding the dishonest and the guilty and  thus  to
stretching the concept of justice to illogical and exasperating  limits.  It
amounts to an “unnatural expansion of natural justice” which  in  itself  is
antithetical to justice”

22.   Present is not a  case  of  not  serving  the  inquiry  report  before
awarding the punishment rather the  complaint  has  been  made  that  before
sending  the  inquiry  report  to  the  delinquent   officer,   Disciplinary
Authority has already made up  its  mind  to  accept  the  findings  of  the
inquiry report and decided to  award   punishment  of  dismissal.  Both  the
learned Single Judge and the Division Bench on the  aforesaid  premise  came
to the conclusion that principle of natural justice have  been  violated  by
the Disciplinary Authority. The Division Bench itself was conscious  of  the
issue, as to whether, inquiry is to be quashed  from  the  stage  where  the
Inquiry Officer\Disciplinary Authority has committed  fault  i.e.  from  the
stage of Rule 15 of the  CCS  (CCA)  Rules  as  non-supply  of  the  report.
Following observations have been made in the impugned judgment  by  Division
Bench in para 21:

“Having said so, the core question  is  –  whether  the  inquiry  is  to  be
quashed from the stage where the Inquiry Officer/Disciplinary Authority  has
committed fault, i.e. from the stage of Rule 15  of  the  CCS  (CCA)  Rules,
i.e. non-supply of inquiry report, findings and other material  relied  upon
by the Inquiry Officer/Disciplinary Authority to the writ  writ  petitioner-
respondent herein to explain the circumstances, which were  made  basis  for
making foundation of inquiry report or is it  a  case  for  closure  of  the
inquiry in view of the fact  that  there  is  not  even  a  single  iota  of
evidence,  prima  facie,  not  to  speak  of  proving  by  preponderance  of
probabilities, that the writ petitioner has absented himself  willfully  and
he has disobeyed the directions?”

23.   The above observation clearly indicates that Division Bench  was  well
aware that fault has occurred on the stage of  Rule  15  of  the  CCS  (CCA)
Rules.  The Division Bench had also relied on the judgment of this Court  in
where  this  Court  had  laid  down  that  absence  from  duty  without  any
application on prior permission may amount to unauthorised  absence  but  it
does not always mean willful. Learned counsel for the  appellant,  as  noted
above, has confined his submission on the proof of the second  part  of  the
charge and he has not invited us to enter  into  the  issue  as  to  whether
absence of the writ petitioner was willful or not.

24.   As noted above, the Division Bench, having posed the question,  as  to
whether, inquiry is to be quashed from the stage  whether  the  Disciplinary
Authority committed fault i.e. from the Rule 15, has not further dwelt  upon
the question nor has given any reason as to why the opportunity for  holding
the inquiry from the stage fault was found be not given.  On  the  scope  of
judicial review, the Division Bench itself has referred to judgment of  this
Court reported in M.V. BIJLANI VERSUS UNION OF INDIA  AND  OTHERS  (2006)  5
SCC 88. This Court, noticing the scope of  judicial  review  in  context  of
disciplinary proceeding made following observations in para 25:
“It is true that the  jurisdiction  of  the  court  in  judicial  review  is
limited. Disciplinary proceedings, however, being quasi-criminal in  nature,
there should be some evidence to prove the charge. Although the  charges  in
a departmental proceeding are not required to  be  proved  like  a  criminal
trial i.e. beyond all reasonable doubt, we cannot lose  sight  of  the  fact
that the enquiry  officer  performs  a  quasi-judicial  function,  who  upon
analysing the documents must arrive at a conclusion that there  had  been  a
preponderance of probability to prove the charges on the basis of  materials
on  record.   While  doing  so,  he  cannot  take  into  consideration   any
irrelevant fact.  He cannot  refuse  to  consider  the  relevant  facts.  He
cannot shift the burden of proof. He cannot reject  the  relevant  testimony
of the witnesses only on the basis of surmises and conjectures.   He  cannot
enquire into the allegations with which the delinquent officer had not  been
charged with.”

25.   The three Judge Bench of this Court in B.C.  CHATURVEDI  VERSUS  UNION
OF INDIA AND OTHERS 1995 (6) SCC 749  had  noticed  the  scope  of  judicial
review with regard to disciplinary proceeding. Following  observations  have
been made in paras 12 and 13:
“12.  Judicial review is not an appeal from a decision but a review  of  the
manner in which the decision is made. Power of judicial review is  meant  to
ensure that the individual receives fair treatment and not  to  ensure  that
the conclusion which the authority reaches is  necessarily  correct  in  the
eye of the court.  When an inquiry is conducted on charges of misconduct  by
a public servant, the Court/Tribunal is concerned to determine  whether  the
inquiry was held by a competent officer or whether rules of natural  justice
are complied with.  Whether the findings or conclusions are  based  on  some
evidence, the authority  entrusted  with  the  power  to  hold  inquiry  has
jurisdiction, power and authority to reach a finding of fact or  conclusion.
But that finding must be based on  some  evidence.   Neither  the  technical
rules of Evidence Act nor of proof of fact or evidence as  defined  therein,
apply to disciplinary proceeding. When the authority accepts  that  evidence
and conclusion receives support therefrom,  the  disciplinary  authority  is
entitled to hold that the delinquent officer is guilty of the  charge.   The
Court/Tribunal in its power of judicial review does  not  act  as  appellate
authority  to  re-appreciate  the  evidence  and  to  arrive  at   its   own
independent findings on  the  evidence.  The  Court/Tribunal  may  interfere
where the authority held the proceedings against the delinquent  officer  in
a manner inconsistent with the rules of natural justice or in  violation  of
statutory rules prescribing the mode of inquiry or where the  conclusion  or
finding reached by the disciplinary authority is based on  no  evidence.  If
the conclusion or finding be such as no reasonable person  would  have  ever
reached, the  Court/Tribunal  may  interfere  with  the  conclusion  or  the
finding, and mould the relief so as to make it appropriate to the  facts  of
each case.”

“13.   The disciplinary authority is the sole judge of facts.  Where  appeal
is  presented,  the  appellate  authority  has  coextensive  power  to   re-
appreciate the evidence or the  nature  of  punishment.  In  a  disciplinary
inquiry, the strict proof of legal evidence and findings  on  that  evidence
are not relevant. Adequacy of evidence or reliability of evidence cannot  be
permitted to be canvassed before the Court/Tribunal. In Union  of  India  V.
H.C.  Goel  this  Court  held  at  p.  728  that  if  the  conclusion,  upon
consideration of the evidence reached  by  the  disciplinary  authority,  is
perverse or suffers from patent error on the face of the record or based  on
no evidence at all, a writ of certiorari could issued.”

26.   Both the learned Single Judge and  the  Division  Bench  have  heavily
relied on the fact that before forwarding the copy of the report  by  letter
dated 02.04.2008 the  Disciplinary  Authority-cum-Whole  Time  Members  have
already formed an opinion on 25.02.2008 to punish the writ  petitioner  with
major penalty which is a clear violation of principle  of  natural  justice.
We are of the view that before making  opinion  with  regard  to  punishment
which is to be imposed on a delinquent, the delinquent has to  be  given  an
opportunity to submit the representation/reply on the inquiry  report  which
finds a charge proved against the delinquent.  The  opinion  formed  by  the
Disciplinary Authority-cum-Whole  Time  Members  on  25.02.2008  was  formed
without there being benefit of  comments  of  the  writ  petitioner  on  the
inquiry report. The writ petitioner in his  representation  to  the  inquiry
report is entitled to point out any defect in the  procedure,  a  defect  of
substantial nature in appreciation of evidence, any misleading  of  evidence
both oral or documentary. In his representation any inputs  and  explanation
given  by  the  delinquent  are  also  entitled  to  be  considered  by  the
Disciplinary Authority before it embarks with  further  proceedings  as  per
statutory rules. We are, thus, of the  view  that  there  was  violation  of
principle of natural justice at the level  of  Disciplinary  Authority  when
opinion was formed to punish the  writ  petitioner  with  dismissal  without
forwarding the inquiry report to the delinquent  and  before  obtaining  his
comments on the inquiry report. We are, thus, of the view that the order  of
the High Court setting aside the punishment order as well as  the  Appellate
order has to be maintained.

27.   In view of the above discussion, we are of the view  that  present  is
the case where the High Court while quashing the punishment  order  as  well
as Appellate order ought to have permitted  the  Disciplinary  Authority  to
have proceeded with the inquiry from the stage in which  fault  was  noticed
i.e. the Stage under Rule 15 of Rules.  We  are  conscious  that  sufficient
time has elapsed during the pendency of the  writ  petition  before  learned
Single Judge, Division Bench and before this Court, however, in view of  the
interim order passed by this Court dated 31.08.2015 no  further  steps  have
been taken regarding implementation of the order  of  the  High  Court.  The
ends of justice be served in disposing of  this  appeal  by  fixing  a  time
frame for completing  the proceeding from the stage of    Rule 15.

28.   We having found that principles of natural justice have been  violated
after submission of the inquiry  report  dated  29.12.2007  all  proceedings
taken by the Disciplinary Authority after 29.12.2007 have to  be  set  aside
and the Disciplinary Authority is to be directed to forward the copy of  the
inquiry report in accordance with Rule  15(2)  of  Rules  1965  and  further
proceedings, if any, are to be taken thereafter.

29.   In the result, the appeal is partly allowed, the judgment of the  High
Court is modified in the following manner:

(1)   All proceedings of Disciplinary  Authority  after  submission  of  the
inquiry report dated 29.12.2007 including punishment order  dated  25.8.2009
and Appellate order dated 10.12.2009  are set aside.

(2)   The Disciplinary Authority shall forward the  inquiry  report  as  per
Rule 15(2) of 1965 Rules. The writ petitioner be allowed 15  days'  time  to
submit his representation to the inquiry report.
(3)   After receipt of representation of the writ petitioner to the  inquiry
report, the Disciplinary Authority  may  proceed  and  take  a  decision  in
accordance with Rule 15 of 1965 Rules.

(4)   The Disciplinary Authority shall complete  the  proceedings  and  pass
appropriate orders within a period of three months from the date of  receipt
of representation of the writ petitioner to the inquiry report.
                                             (S. A. BOBDE)

                                             (ASHOK BHUSHAN)

NOVEMBER 18 , 2016.

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