Full Judgment Text
1
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.
JUDGMENT
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
Page 1
2
of punishment of compulsory retirement as well as order
of the Appellate Authority, dismissing the appeal were
setaside 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
JUDGMENT
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
Page 2
3
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 postfacto
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
JUDGMENT
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
Page 3
4
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
MedicalcumFitness 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
JUDGMENT
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
Page 4
5
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.) (PW1) and
Shri Brij Lal Kiashta Section Officer (PW2). 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.
JUDGMENT
Charge No.1 Proved.”
4. The Disciplinary AuthoritycumWhole 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
Page 5
6
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
JUDGMENT
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
Page 6
7
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
JUDGMENT
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
Page 7
8
report was supplied to the writ petitioner on
02.04.2008 whereas Disciplinary AuthoritycumWhole
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
JUDGMENT
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
Page 8
9
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
JUDGMENT
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
Page 9
10
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 misconduct on behalf of such
senior officer cannot be condoned and both the
Courts below committed error in settingaside 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
JUDGMENT
indicate that writ petitioner was suffering from
tuberculosis, his absence from duty cannot be said
to be willful and such absence is not misconduct 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
Page 10
11
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 respondentappellant.”
JUDGMENT
“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
petitionerrespondent herein from service
and to throw him out, even without hearing
him. Meaning thereby prejudice has been
caused to the writ petitionerrespondent
herein.”
“36. Applying the test to the instant case,
one comes to an inescapable conclusion
that the Inquiry Officer and the
Page 11
12
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
alongwith letter dated 02.04.2008, whereas
Disciplinary AuthoritycumWhole 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:
JUDGMENT
“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
respondentappellant 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.”
Page 12
13
“19. The writ petitioner has filed
rejoinder and has explained all
circumstances which have been taken as
grounds by the appellantwrit respondent in
the reply for conducting the inquiry and
imposing the penalty upon the writ writ
petitionerrespondent.”
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, Shimla4 during the period
from 200506 proceeded on leave on
30.07.2005 on medical ground. Er. Dahiya
was repeatedly directed vide Chief Engineer
[Comm.] HPSEB, Shimla4 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 Rule3[1](i)(ii) (iii) of CCS
Conduct Rules, 1964 and which made him
liable for disciplinary action under Rule14
of CCS[CCA] Rules1965.”
JUDGMENT
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
Page 13
14
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
JUDGMENT
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
Page 14
15
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
JUDGMENT
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
Page 15
16
report of the Inquiry Officer has been brought on
record as annexure P7, 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
JUDGMENT
th
defence witness has only stated that 30 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
th
to making leave application on 30 July, 2005. We,
thus, do not find any infirmity in the Inquiry
Page 16
17
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.
JUDGMENT
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
AuthoritycumWhole Time Members have already came
Page 17
18
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
nonsupply of the copy of advise of U.P.S.C. to
delinquent officer at predecision 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
JUDGMENT
Page 18
19
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.
JUDGMENT
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
Page 19
20
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
nonGovernment, 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.”
JUDGMENT
“(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
Page 20
21
service and the inquiry is set aside because
the report is not furnished to him, in some
cases the nonfurnishing 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
backwages 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”
JUDGMENT
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
Page 21
22
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 nonsupply 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. nonsupply of inquiry
report, findings and other material relied
upon by the Inquiry Officer/Disciplinary
Authority to the writ writ
petitionerrespondent 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?”
JUDGMENT
Page 22
23
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
JUDGMENT
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
Page 23
24
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
quasicriminal 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 quasijudicial
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.”
JUDGMENT
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
Page 24
25
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 reappreciate 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
JUDGMENT
Page 25
26
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 reappreciate 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
JUDGMENT
forwarding the copy of the report by letter dated
02.04.2008 the Disciplinary AuthoritycumWhole
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
Page 26
27
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
AuthoritycumWhole 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
JUDGMENT
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
Page 27
28
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,
JUDGMENT
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.
Page 28
29
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
JUDGMENT
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
Page 29
30
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)
JUDGMENT
.........….........…...........................J.
(ASHOK BHUSHAN)
NEW DELHI,
NOVEMBER 18 , 2016.
Page 30