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TMI Blog2016 (11) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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. 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 - the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained. Thus, 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 - sufficient time has elapsed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineer 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 [Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. B. Karunak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed 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 v. Union of India and Ors. (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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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