Service matter - Dismissed from service for unauthorized absent - refused to receive the witnesses and refused to receive Medical certificates - Single judge High court allowed the writ and set aside the dismissal order - DB bench reversed the single Judge - Apex court set aside the order of DB and held that In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate.The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.=
The appellant was working with the respondent-Bank since 17th
February, 1984 as Clerk-cum-Cashier.
While in service he remained absent
from duty from 11th December, 1989 to 24th October, 1990 (approximately 10
and 1/2 months) without obtaining prior permission of the competent
authority.
For the said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the Marwar Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October, 1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him which were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and submitted
the same after much delay.=
During the inquiry
the appellant submitted list of seven defence
witnesses. However, Inquiry Officer called only two witnesses and refused
to call rest of the five witnesses on the ground that the presenting
officer of the Bank was ready to answer the questions on behalf of them as
may be raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses as
“untrustworthy” and held the appellant guilty for the charges.=
Finally, after hearing the appellant, the Disciplinary Authority held the
charges to be proved and removed the appellant from service by order dated
17th October, 1994.=
The learned Single Judge by judgment dated 31st March, 2009 allowed
the writ petition, quashed the order of removal and directed the respondent
to reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant case the reason given for not calling the witnesses named
by the delinquent employee is absolutely vague and irrelevant. It does not
and cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the charged
employee for defending himself. A definite prejudice, therefore, is caused
by not calling the witnesses named by the petitioner without examining
their relevance and ultimately holding him guilty for the charges in
defence of which he indicated his desire to examine those witnesses.”=
But D.B. Bench Reversed the single judge =
Apex court held that
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6018 OF 2014
(arising out of SLP (C) No.29807 of 2012)
CHHEL SINGH … APPELLANT
VERSUS
M.G.B. GRAMIN BANK PALI & ORS. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.
2. This appeal is directed against the judgment and order dated 10th
May, 2012 passed by the Division Bench of the High Court of Judicature for
Rajasthan at Jodhpur whereby the Division Bench allowed the appeal
preferred by the respondent-M.G.B. Gramin Bank, Pali (hereinafter referred
to as the “Bank”) and set aside the order passed by the learned Single
Judge.
3. The factual matrix of the case is as follows:
The appellant was working with the respondent-Bank since 17th
February, 1984 as Clerk-cum-Cashier. While in service he remained absent
from duty from 11th December, 1989 to 24th October, 1990 (approximately 10
and 1/2 months) without obtaining prior permission of the competent
authority. For the said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the Marwar Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October, 1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him which were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and submitted
the same after much delay.
4. The appellant by his reply dated 23rd November, 1991 disputed the
allegations and informed that he was seriously ill between 11th December,
1989 and 24th October, 1990, therefore, the absence was beyond his control;
he never intended to contravene any of the provisions of the service
regulations. The explanation submitted by the appellant was not accepted by
the Disciplinary Authority, who decided to inquire into the charges and
appointed one Shri P.R. Agarwal as the Inquiry Officer.
5. During the inquiry the appellant submitted list of seven defence
witnesses. However, Inquiry Officer called only two witnesses and refused
to call rest of the five witnesses on the ground that the presenting
officer of the Bank was ready to answer the questions on behalf of them as
may be raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses as
“untrustworthy” and held the appellant guilty for the charges.
6. The Disciplinary Authority, having gone through the report, issued a
show cause notice enclosing the copy of the inquiry report as to why the
appellant should not be punished for the charges mentioned therein.
Finally, after hearing the appellant, the Disciplinary Authority held the
charges to be proved and removed the appellant from service by order dated
17th October, 1994. The appeal preferred against the order of the removal
was dismissed by the Appellate Authority vide order dated 26th December,
1994.
7. The said orders of the Disciplinary Authority and Appellate Authority
were challenged by the appellant before the High Court in Writ Petition
No.1702/1995. One of the grounds taken was that the entire inquiry stood
vitiated having conducted in violation of principles of natural justice.
The Inquiry Officer without having any justifiable reason disallowed the
prayer of the appellant to summon five important witnesses. The other
ground was that the penalty imposed was disproportionate to the gravity of
charges.
8. The learned Single Judge by judgment dated 31st March, 2009 allowed
the writ petition, quashed the order of removal and directed the respondent
to reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant case the reason given for not calling the witnesses named
by the delinquent employee is absolutely vague and irrelevant. It does not
and cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the charged
employee for defending himself. A definite prejudice, therefore, is caused
by not calling the witnesses named by the petitioner without examining
their relevance and ultimately holding him guilty for the charges in
defence of which he indicated his desire to examine those witnesses.”
The Court also observed:
“In the instant matter the inquiry officer simply mentioned that the
defence witnesses Kalyan Singh and Ganpat Singh are not trustworthy. No
reason is given by the Inquiry Officer to disbelieve those persons.
Pertinent to note here that Ganpat Singh as well as Kalyan Singh
extensively narrated facts about serious ailment of the petitioner. The
Inquiry Officer while disbelieving those persons should have given definite
reasons to justify his conclusion. Merely saying that the persons are not
found trustworthy, is not at all sufficient. The basic principle is that
every person coming forward as a witness in evidence states trust except
proved otherwise, therefore, onus was upon the Inquiry Officer to establish
by adequate discussion relating to conduct and character of Kalyan Singh
and Ganpat Singh to disbelieve them or to say that they were not
trustworthy.”
9. The aforesaid judgment passed by the learned Single Judge was
challenged by the Bank in a writ appeal. The Division Bench though accepted
that the Inquiry stood vitiated but set aside the order of reinstatement
with following observation:
“Therefore, we are of the consigned opinion that even while the order
as passed by the learned Single Judge quashing the orders of the
Disciplinary Authority and the Appellate Authority need not be interfered
with, the other part of the order calls for interference and it appears in
the interest of justice that the matter be restored for reconsideration of,
and re-reporting by, the Inquiry Officer after concluding the inquiry
proceedings in conformity with the requirements of principles of natural
justice.
In view of the above, this appeal succeeds and is allowed in the
manner that the order passed by the learned Single Judge insofar quashing
of the impugned orders dated 17.08.94 and 26.12.1994 is concerned, the same
is affirmed, but the other part of the order of the learned Single Judge,
declaring the petitioner entitled to be reinstated in service with all
consequential benefits, is set aside. Instead, we consider it proper and
hence order that the report as made by the Inquiry Officer dated 03.01.1994
shall stand annulled and the matter shall stand restored for
reconsideration of, and re-reporting by, the Inquiry Officer.
It goes without saying that if the Inquiry Officer who had earlier
conducted the inquiry is not available, or for any other sufficient reason,
it shall always be permissible for the Disciplinary Authority to appoint
any other officer to inquire into the matter. For looking further
instructions in the matter, the parties shall stand at noted to appear
before the Disciplinary Authority on 18.06.2012.”
10. The learned counsel for the appellant while placing reliance on the
Inquiry Report and finding of the learned Single Judge submitted that the
inquiry was conducted in violation of principle of natural justice and
hence the learned Single Judge rightly directed the reinstatement of the
appellant. Whereas according to learned counsel for the respondent-Bank,
the Division Bench rightly set aside the order of reinstatement and
remitted the matter for fresh enquiry.
11. After giving our careful consideration to the facts and circumstances
of the case and the submission made by the learned counsel for the parties,
we are of the view that the Division Bench was wrong in setting aside the
order of reinstatement.
12. The Division Bench has accepted that the inquiry stood vitiated by
disallowing the request of the appellant to summon the rest of the five
witnesses. For the said reason, the Division Bench has not interfered with
such part of the finding and order passed by the learned Single Judge
whereby the impugned order of termination dated 17th October, 1994 and the
Appellate Authority order dated 26th December, 1994 were quashed.
13. The order of termination being quashed by the High Court, in absence
of any observation and grounds to refuse the reinstatement, the appellant
automatically stood reinstated. Without reinstatement in service, the
question of further inquiry does not arise. There was no occasion for the
Division Bench of the High Court to direct further inquiry, without
reinstatement of appellant.
14. The following charges were leveled against the appellant, as
mentioned in the inquiry report:
“Charge No.1:
According to Rule 22(1) of Marwar Gramin Bank Employee Association
Rules, 1980 no officer or employee would absent himself without the prior
permission from competent authority and in case of disease and accident no
one would absent himself without providing medical certificate, but you
flouted the instructions of competent authority and without permission you
remained absent from 11.12.89 to 24.10.90 and you got the medical
certificate issued in connection with your illness you submitted the
medical certificate on 20.10.90 with so much of delay.
Charge No.2:
According to Rule 22(2) of Marwar Gramin Bank Employee Association Rules,
1980 if any officer or employee remains absent without leave or remains
absent after the expiry of leave, (leaving the circumstances which is
beyond their control and for that he has to give satisfactory
clarification), then he would not be entitled for payment of such absence
or the period after the absence and would be liable for such action which
would be charged by competent authority. But you violated these
instructions:
(D) You remained on medical leave from 11.12.89 to 24.10.90 and you did not
submit leave application as per rule.
(E) You had been instructed by the head office by its letter no.K/7901
dated 23.08.90 to present yourself on duty within 7 days and also to give
clarification for being absent without leave but you did not submit any
reply. Thereafter also, you were again given instruction by head quarter
letter no.K/10076 dated 22.9.90 you were instructed to present on duty by
05.10.90 and also to submit the clarification. The said letter was
received by you on 4.10.90. Then also you did not send any information to
bank about your absence.
(F) In your clarification you have stated that you could not give
information since you were suffering from incurable disease but in medical
certificate submitted by you there is no mention of any incurable disease,
where it was not possible for you to send the leave information. Thus, you
gave wrong information to bank.
Charge No.3:
You not being seriously ill, produced the evidence of illness from
various doctors whereas:
(A) You travelled during your alleged serious illness. According to
medical certificate issued by Dr. S.S. Purohit, Navdeep Hospital Palanpur
issued on 25.10.90, you got treatment from him from 13.8.90 to 24.10.90 and
rest has been prescribed whereas during that period you were on your
permanent residence at Chitalwana. You yourself received the registered
letter no.K/1-0078 dated 22.9.90 and K/11211 dated 11.10.90 at Chitalwana.
(B) In the letter K/11211 dated 11.10.90 the instruction given was very
clear that join the duty by 27.10.90 and it was stated in that letter that
if you do not join the duty then it would be presumed that you are not
interested to work in the bank. Then you had shown yourself to be healthy
and you joined duty on 25.10.90
Charge No.4:
In Circular no.21/78 dated 22.6.78 it has been instructed that the
employees on leave on health reason would submit medical certificate while
joining on duty. You violated these instructions and did not present the
medical certificate while joining duty. You submitted the said certificate
on 20.10.90 with delay.”
15. From the plain reading of the charges we find that the main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10
and ½ months), for which no prior permission was obtained from the
competent authority. In his reply, the appellant has taken the plea that
he was seriously ill between 11.12.89 and 24.10.90, which was beyond his
control; he never intended to contravene any of the provisions of the
service regulations. He submitted the copies of medical certificates issued
by Doctors in support of his claim after rejoining the post. The medical
reports were submitted after about 24 days. There was no allegation that
the appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate. It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by the
appellant were forged or fabricated or obtained for any consideration
though he was not ill during the said period. In absence of such evidence
and finding, it was not open to the Inquiry Officer or the Disciplinary
Authority to disbelieve the medical certificates issued by the Doctors
without any valid reason and on the ground of 24 days delay.
16. In view of the observation made above, the order passed by the
Division Bench of the High Court cannot be upheld. We, accordingly, set
aside the impugned judgment and order dated 10th May, 2012 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No.
850 of 2009 and upheld the order passed by the learned Single Judge dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. The
respondents are directed to implement the direction and order dated 31st
March, 2009 issued by the learned Single Judge within four weeks from the
date of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No
costs.
…………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 07, 2014.
The appellant was working with the respondent-Bank since 17th
February, 1984 as Clerk-cum-Cashier.
While in service he remained absent
from duty from 11th December, 1989 to 24th October, 1990 (approximately 10
and 1/2 months) without obtaining prior permission of the competent
authority.
For the said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the Marwar Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October, 1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him which were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and submitted
the same after much delay.=
During the inquiry
the appellant submitted list of seven defence
witnesses. However, Inquiry Officer called only two witnesses and refused
to call rest of the five witnesses on the ground that the presenting
officer of the Bank was ready to answer the questions on behalf of them as
may be raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses as
“untrustworthy” and held the appellant guilty for the charges.=
Finally, after hearing the appellant, the Disciplinary Authority held the
charges to be proved and removed the appellant from service by order dated
17th October, 1994.=
The learned Single Judge by judgment dated 31st March, 2009 allowed
the writ petition, quashed the order of removal and directed the respondent
to reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant case the reason given for not calling the witnesses named
by the delinquent employee is absolutely vague and irrelevant. It does not
and cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the charged
employee for defending himself. A definite prejudice, therefore, is caused
by not calling the witnesses named by the petitioner without examining
their relevance and ultimately holding him guilty for the charges in
defence of which he indicated his desire to examine those witnesses.”=
But D.B. Bench Reversed the single judge =
Apex court held that
From the plain reading of the charges we find that the main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10
and ½ months), for which no prior permission was obtained from the
competent authority.
In his reply, the appellant has taken the plea that
he was seriously ill between 11.12.89 and 24.10.90, which was beyond his
control;
he never intended to contravene any of the provisions of the
service regulations.
He submitted the copies of medical certificates issued
by Doctors in support of his claim after rejoining the post.
The medical
reports were submitted after about 24 days.
There was no allegation that
the appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate.
It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by the
appellant were forged or fabricated or obtained for any consideration
though he was not ill during the said period.
In absence of such evidence
and finding, it was not open to the Inquiry Officer or the Disciplinary
Authority to disbelieve the medical certificates issued by the Doctors
without any valid reason and on the ground of 24 days delay.
16. In view of the observation made above, the order passed by the
Division Bench of the High Court cannot be upheld.
We, accordingly, set
aside the impugned judgment and order dated 10th May, 2012 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No.
850 of 2009 and upheld the order passed by the learned Single Judge dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995.
The
respondents are directed to implement the direction and order dated 31st
March, 2009 issued by the learned Single Judge within four weeks from the
date of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No
costs.
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10
and ½ months), for which no prior permission was obtained from the
competent authority.
In his reply, the appellant has taken the plea that
he was seriously ill between 11.12.89 and 24.10.90, which was beyond his
control;
he never intended to contravene any of the provisions of the
service regulations.
He submitted the copies of medical certificates issued
by Doctors in support of his claim after rejoining the post.
The medical
reports were submitted after about 24 days.
There was no allegation that
the appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate.
It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by the
appellant were forged or fabricated or obtained for any consideration
though he was not ill during the said period.
In absence of such evidence
and finding, it was not open to the Inquiry Officer or the Disciplinary
Authority to disbelieve the medical certificates issued by the Doctors
without any valid reason and on the ground of 24 days delay.
16. In view of the observation made above, the order passed by the
Division Bench of the High Court cannot be upheld.
We, accordingly, set
aside the impugned judgment and order dated 10th May, 2012 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No.
850 of 2009 and upheld the order passed by the learned Single Judge dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995.
The
respondents are directed to implement the direction and order dated 31st
March, 2009 issued by the learned Single Judge within four weeks from the
date of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No
costs.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41749
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6018 OF 2014
(arising out of SLP (C) No.29807 of 2012)
CHHEL SINGH … APPELLANT
VERSUS
M.G.B. GRAMIN BANK PALI & ORS. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
Leave granted.
2. This appeal is directed against the judgment and order dated 10th
May, 2012 passed by the Division Bench of the High Court of Judicature for
Rajasthan at Jodhpur whereby the Division Bench allowed the appeal
preferred by the respondent-M.G.B. Gramin Bank, Pali (hereinafter referred
to as the “Bank”) and set aside the order passed by the learned Single
Judge.
3. The factual matrix of the case is as follows:
The appellant was working with the respondent-Bank since 17th
February, 1984 as Clerk-cum-Cashier. While in service he remained absent
from duty from 11th December, 1989 to 24th October, 1990 (approximately 10
and 1/2 months) without obtaining prior permission of the competent
authority. For the said reason he was served with a memorandum on 5th
October, 1991 alleging contravention of the provisions of the Marwar Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October, 1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him which were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and submitted
the same after much delay.
4. The appellant by his reply dated 23rd November, 1991 disputed the
allegations and informed that he was seriously ill between 11th December,
1989 and 24th October, 1990, therefore, the absence was beyond his control;
he never intended to contravene any of the provisions of the service
regulations. The explanation submitted by the appellant was not accepted by
the Disciplinary Authority, who decided to inquire into the charges and
appointed one Shri P.R. Agarwal as the Inquiry Officer.
5. During the inquiry the appellant submitted list of seven defence
witnesses. However, Inquiry Officer called only two witnesses and refused
to call rest of the five witnesses on the ground that the presenting
officer of the Bank was ready to answer the questions on behalf of them as
may be raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses as
“untrustworthy” and held the appellant guilty for the charges.
6. The Disciplinary Authority, having gone through the report, issued a
show cause notice enclosing the copy of the inquiry report as to why the
appellant should not be punished for the charges mentioned therein.
Finally, after hearing the appellant, the Disciplinary Authority held the
charges to be proved and removed the appellant from service by order dated
17th October, 1994. The appeal preferred against the order of the removal
was dismissed by the Appellate Authority vide order dated 26th December,
1994.
7. The said orders of the Disciplinary Authority and Appellate Authority
were challenged by the appellant before the High Court in Writ Petition
No.1702/1995. One of the grounds taken was that the entire inquiry stood
vitiated having conducted in violation of principles of natural justice.
The Inquiry Officer without having any justifiable reason disallowed the
prayer of the appellant to summon five important witnesses. The other
ground was that the penalty imposed was disproportionate to the gravity of
charges.
8. The learned Single Judge by judgment dated 31st March, 2009 allowed
the writ petition, quashed the order of removal and directed the respondent
to reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant case the reason given for not calling the witnesses named
by the delinquent employee is absolutely vague and irrelevant. It does not
and cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the charged
employee for defending himself. A definite prejudice, therefore, is caused
by not calling the witnesses named by the petitioner without examining
their relevance and ultimately holding him guilty for the charges in
defence of which he indicated his desire to examine those witnesses.”
The Court also observed:
“In the instant matter the inquiry officer simply mentioned that the
defence witnesses Kalyan Singh and Ganpat Singh are not trustworthy. No
reason is given by the Inquiry Officer to disbelieve those persons.
Pertinent to note here that Ganpat Singh as well as Kalyan Singh
extensively narrated facts about serious ailment of the petitioner. The
Inquiry Officer while disbelieving those persons should have given definite
reasons to justify his conclusion. Merely saying that the persons are not
found trustworthy, is not at all sufficient. The basic principle is that
every person coming forward as a witness in evidence states trust except
proved otherwise, therefore, onus was upon the Inquiry Officer to establish
by adequate discussion relating to conduct and character of Kalyan Singh
and Ganpat Singh to disbelieve them or to say that they were not
trustworthy.”
9. The aforesaid judgment passed by the learned Single Judge was
challenged by the Bank in a writ appeal. The Division Bench though accepted
that the Inquiry stood vitiated but set aside the order of reinstatement
with following observation:
“Therefore, we are of the consigned opinion that even while the order
as passed by the learned Single Judge quashing the orders of the
Disciplinary Authority and the Appellate Authority need not be interfered
with, the other part of the order calls for interference and it appears in
the interest of justice that the matter be restored for reconsideration of,
and re-reporting by, the Inquiry Officer after concluding the inquiry
proceedings in conformity with the requirements of principles of natural
justice.
In view of the above, this appeal succeeds and is allowed in the
manner that the order passed by the learned Single Judge insofar quashing
of the impugned orders dated 17.08.94 and 26.12.1994 is concerned, the same
is affirmed, but the other part of the order of the learned Single Judge,
declaring the petitioner entitled to be reinstated in service with all
consequential benefits, is set aside. Instead, we consider it proper and
hence order that the report as made by the Inquiry Officer dated 03.01.1994
shall stand annulled and the matter shall stand restored for
reconsideration of, and re-reporting by, the Inquiry Officer.
It goes without saying that if the Inquiry Officer who had earlier
conducted the inquiry is not available, or for any other sufficient reason,
it shall always be permissible for the Disciplinary Authority to appoint
any other officer to inquire into the matter. For looking further
instructions in the matter, the parties shall stand at noted to appear
before the Disciplinary Authority on 18.06.2012.”
10. The learned counsel for the appellant while placing reliance on the
Inquiry Report and finding of the learned Single Judge submitted that the
inquiry was conducted in violation of principle of natural justice and
hence the learned Single Judge rightly directed the reinstatement of the
appellant. Whereas according to learned counsel for the respondent-Bank,
the Division Bench rightly set aside the order of reinstatement and
remitted the matter for fresh enquiry.
11. After giving our careful consideration to the facts and circumstances
of the case and the submission made by the learned counsel for the parties,
we are of the view that the Division Bench was wrong in setting aside the
order of reinstatement.
12. The Division Bench has accepted that the inquiry stood vitiated by
disallowing the request of the appellant to summon the rest of the five
witnesses. For the said reason, the Division Bench has not interfered with
such part of the finding and order passed by the learned Single Judge
whereby the impugned order of termination dated 17th October, 1994 and the
Appellate Authority order dated 26th December, 1994 were quashed.
13. The order of termination being quashed by the High Court, in absence
of any observation and grounds to refuse the reinstatement, the appellant
automatically stood reinstated. Without reinstatement in service, the
question of further inquiry does not arise. There was no occasion for the
Division Bench of the High Court to direct further inquiry, without
reinstatement of appellant.
14. The following charges were leveled against the appellant, as
mentioned in the inquiry report:
“Charge No.1:
According to Rule 22(1) of Marwar Gramin Bank Employee Association
Rules, 1980 no officer or employee would absent himself without the prior
permission from competent authority and in case of disease and accident no
one would absent himself without providing medical certificate, but you
flouted the instructions of competent authority and without permission you
remained absent from 11.12.89 to 24.10.90 and you got the medical
certificate issued in connection with your illness you submitted the
medical certificate on 20.10.90 with so much of delay.
Charge No.2:
According to Rule 22(2) of Marwar Gramin Bank Employee Association Rules,
1980 if any officer or employee remains absent without leave or remains
absent after the expiry of leave, (leaving the circumstances which is
beyond their control and for that he has to give satisfactory
clarification), then he would not be entitled for payment of such absence
or the period after the absence and would be liable for such action which
would be charged by competent authority. But you violated these
instructions:
(D) You remained on medical leave from 11.12.89 to 24.10.90 and you did not
submit leave application as per rule.
(E) You had been instructed by the head office by its letter no.K/7901
dated 23.08.90 to present yourself on duty within 7 days and also to give
clarification for being absent without leave but you did not submit any
reply. Thereafter also, you were again given instruction by head quarter
letter no.K/10076 dated 22.9.90 you were instructed to present on duty by
05.10.90 and also to submit the clarification. The said letter was
received by you on 4.10.90. Then also you did not send any information to
bank about your absence.
(F) In your clarification you have stated that you could not give
information since you were suffering from incurable disease but in medical
certificate submitted by you there is no mention of any incurable disease,
where it was not possible for you to send the leave information. Thus, you
gave wrong information to bank.
Charge No.3:
You not being seriously ill, produced the evidence of illness from
various doctors whereas:
(A) You travelled during your alleged serious illness. According to
medical certificate issued by Dr. S.S. Purohit, Navdeep Hospital Palanpur
issued on 25.10.90, you got treatment from him from 13.8.90 to 24.10.90 and
rest has been prescribed whereas during that period you were on your
permanent residence at Chitalwana. You yourself received the registered
letter no.K/1-0078 dated 22.9.90 and K/11211 dated 11.10.90 at Chitalwana.
(B) In the letter K/11211 dated 11.10.90 the instruction given was very
clear that join the duty by 27.10.90 and it was stated in that letter that
if you do not join the duty then it would be presumed that you are not
interested to work in the bank. Then you had shown yourself to be healthy
and you joined duty on 25.10.90
Charge No.4:
In Circular no.21/78 dated 22.6.78 it has been instructed that the
employees on leave on health reason would submit medical certificate while
joining on duty. You violated these instructions and did not present the
medical certificate while joining duty. You submitted the said certificate
on 20.10.90 with delay.”
15. From the plain reading of the charges we find that the main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10
and ½ months), for which no prior permission was obtained from the
competent authority. In his reply, the appellant has taken the plea that
he was seriously ill between 11.12.89 and 24.10.90, which was beyond his
control; he never intended to contravene any of the provisions of the
service regulations. He submitted the copies of medical certificates issued
by Doctors in support of his claim after rejoining the post. The medical
reports were submitted after about 24 days. There was no allegation that
the appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate. It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by the
appellant were forged or fabricated or obtained for any consideration
though he was not ill during the said period. In absence of such evidence
and finding, it was not open to the Inquiry Officer or the Disciplinary
Authority to disbelieve the medical certificates issued by the Doctors
without any valid reason and on the ground of 24 days delay.
16. In view of the observation made above, the order passed by the
Division Bench of the High Court cannot be upheld. We, accordingly, set
aside the impugned judgment and order dated 10th May, 2012 passed by the
Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No.
850 of 2009 and upheld the order passed by the learned Single Judge dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. The
respondents are directed to implement the direction and order dated 31st
March, 2009 issued by the learned Single Judge within four weeks from the
date of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No
costs.
…………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………….J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 07, 2014.
