REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10913 OF 2016
(ARISING OUT OF SLP(C) NO. 25742 OF 2015)
H.P. STATE ELECTRICITY
BOARD LTD. .... APPELLANT
VERSUS
MAHESH DAHIYA .... RESPONDENT
JUDGMENT
ASHOK BHUSHAN. J
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
effect:
“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
KRUSHNAKANT B. PARMAR Versus UNION OF INDIA AND ANOTHER (2012) 3 SCC 178
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.
………………….…...........................J.
(S. A. BOBDE)
.........….........…...........................J.
(ASHOK BHUSHAN)
NEW DELHI,
NOVEMBER 18 , 2016.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10913 OF 2016
(ARISING OUT OF SLP(C) NO. 25742 OF 2015)
H.P. STATE ELECTRICITY
BOARD LTD. .... APPELLANT
VERSUS
MAHESH DAHIYA .... RESPONDENT
JUDGMENT
ASHOK BHUSHAN. J
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
effect:
“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
KRUSHNAKANT B. PARMAR Versus UNION OF INDIA AND ANOTHER (2012) 3 SCC 178
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.
………………….…...........................J.
(S. A. BOBDE)
.........….........…...........................J.
(ASHOK BHUSHAN)
NEW DELHI,
NOVEMBER 18 , 2016.
