Inquiry lacking evidence and cross-examination vitiates dismissal despite unauthorized absence.

Vishnu Shankar Prasad, a Group A Gazetted officer of the 1985 batch and former Chief Engineer in the Ministry of Road Transport and Highways, initiated two original applications.

The first, OA No. 2536/2022, challenged his dismissal from service.

The second, OA No. 2459/2022, sought the release of his financial and retiral benefits.

In 2015, while scrutinizing invoices from Indian Highway Management Company Ltd. (IHMCL), the Applicant identified alleged financial irregularities, noting that initial invoices of ₹7.38 crores were later reduced to ₹0.547 crores, suggesting inflation.

He reported these concerns in a detailed note on March 26, 2015, recommending investigation.

Following this, the Applicant was removed from his charge and transferred to a Chief Engineer post at Silchar on March 27, 2015, which he claimed was non-existent and unapproved by the Cabinet.

After joining Silchar on June 13, 2016, he found no office infrastructure or staff.

Subsequently, his sanctioned earned leave for his wife's illness expired on July 28, 2016, but his request for extension was rejected retrospectively after an unusual delay.

He was not paid full salary from June 2016 and payments ceased entirely from October 2016.

On March 14, 2018, a memorandum of charges was issued for unauthorized absence from duty effective July 29, 2016.

The Applicant alleged bias and conflict of interest by the Inquiry Officer, who was Managing Director of NHIDCL, a body under the same Ministry.

He contended that the inquiry was conducted in haste without following the CCS (CCA) Rules, 1965, and without examining witnesses or allowing defence evidence.

The Inquiry Officer submitted a report on March 11, 2020, finding the Applicant guilty.

The Disciplinary Authority, without deciding his representations or supplying enclosures to the UPSC advice, passed a dismissal order on March 11, 2022, while his earlier OA challenging the inquiry report and UPSC advice was pending.

The Applicant further argued that non-payment of subsistence allowance vitiated the inquiry.

The Respondents argued that the OA was not maintainable, alleging that the Applicant had repeatedly approached judicial fora, including the High Court and Supreme Court, regarding his transfer and other issues, which were dismissed.

They asserted that the inquiry was conducted per rules, and the Applicant was given opportunities to defend himself.

They also contended that the dismissal made claims for gratuity and leave encashment untenable.

The Respondents maintained that the transfer to Silchar was a valid administrative decision, and the Applicant's absence was unauthorized.

They stated that an excess payment of ₹4,63,411/- was recovered from his GPF, and the remaining ₹66,58,691/- was paid to him.

1. Whether the departmental inquiry conducted against the applicant conformed to the provisions of the CCS (CCA) Rules, 1965, and the principles of natural justice?

2. Whether the penalty of dismissal from service imposed upon the applicant was proportionate to the alleged misconduct of unauthorized absence from duty?

3. Whether the applicant is entitled to the release of his unpaid salary, arrears under the 7th Pay Commission, leave encashment, gratuity, pension, CGHS benefits, and other retiral benefits following the setting aside of his dismissal?

The court applied Rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (CCS (CCA) Rules), which mandates that major penalty proceedings must involve a regular departmental inquiry where charges are proved by legally admissible evidence, including the production of documentary evidence and examination of witnesses, with fair opportunity for cross-examination and defence.

It also considered the principles of natural justice.

The court relied on precedents from *State of Uttar Pradesh v. Saroj Kumar Sinha* (2010) 2 SCC 772, which held that departmental inquiries must lead evidence to prove charges and allow cross-examination.

It further cited *Union of India v. D.S. Manchanda* and *Shailender Kumar v. Union of India* affirming similar procedural requirements.

The court also applied the doctrine of proportionality, requiring punishment to be commensurate with the gravity of misconduct.

The Tribunal found that the inquiry proceedings in the present case suffered from serious procedural irregularities, failing to conform to Rule 14 of the CCS (CCA) Rules, 1965, and the principles of natural justice.

Specifically, the Presenting Officer did not examine the witnesses listed in the charge memorandum, nor was substantive documentary evidence formally proved during the inquiry.

The inquiry report largely drew conclusions from departmental records without proper evidence production and proof in a regular inquiry, thereby depriving the Applicant of the opportunity to cross-examine evidence or effectively defend himself.

This failure to examine witnesses and prove documentary evidence was deemed a fundamental defect, vitiating the entire disciplinary proceedings, as established in precedents like *State of Uttar Pradesh v. Saroj Kumar Sinha*.

The court also noted that the charge was merely unauthorized absence, not involving corruption or vigilance issues, making strict adherence to administrative inquiry procedures crucial.

Furthermore, the Tribunal found the punishment of dismissal disproportionate given the procedural deficiencies and the nature of the charge, especially considering the Applicant's long and unblemished service record and the fact that the charge was "only" unauthorized absence.

The Applicant is to be treated as having retired from service upon attaining the age of superannuation, and his service regulated accordingly for retiral and pensionary benefits.

Consequently, OA No. 2459/2022 was also allowed.

The Respondents are directed to calculate and release admissible retiral benefits, including pension, gratuity, leave encashment, and other consequential benefits, treating the Applicant as having retired on superannuation.

They are also ordered to verify the General Provident Fund accounts, ensure the entire amount with interest is paid, and examine claims for arrears of salary and 7th Pay Commission benefits, releasing admissible amounts.

The entire exercise is to be completed within three months from the date of receipt of the order.