JUDGMENT
Satya Brata Sinha, J.
1. This application is directed against an order dated March 17/18, 1987 and the order dated September 11, 1986 whereby and whereunder the petitioner who at the material time had been working as Flight Purser in the services of the respondent No. l was removed from services and the appeal preferred by him against the said order, was dismissed.
2. The Petitioner is said to be a chronic patient of Bronchial Asthma. He felt sick on January 24 and informed the office that he would not be able to attend his duties on that date. The petitioner joined his office on January 26, 1982. On January 27 some Custom officials visited the flat of the petitioner and searched the premises and seized various documents, as a result whereof the petitioner allegedly started suffering from nervous breakdown. His Chronic asthmatic trouble also relapsed that as such he was not in a position to attend to the duties. He informed the’ drives of respondent that the matter be reported to the respondent No. l. The petitioner was arrested on January 27, 1982 and was produced before the Magistrate on January 28. He was granted bail on January 29, 1982. The petitioner’ having been feeling discomfiture due to asthmatic trouble consulted a local physician. He also allegedly informed the Operation Department in writing about his illness. He also wrote two other letters to Operation Manager and Senior Medical Officer under Certificate of Posting on the same date i.e. on January 30, 1982. According to the petitioner he was later on examined by the Doctor of the respondent No. 1 who permitted him to continue to obtain medical treatment from his private Doctor. The endorsement and the medical card of the petitioner is said to be lying with the respondents.
3. Soon about March 30/31, 1982 a charge sheet was issued against the petitioner levelling two charges against him. The first charge was in relation to his alleged absence from duty with effect from January 1982 and making of a false statement in the leave application dated January 30, 1982 to the effect that he was sick from January 25, 1982 whereas in his letter dated January 30, 1982 he has stated that he suddenly became sick at around 12 noon on January 27, 1982 as also on the ground that the petitioner had allegedly failed to produce the report after a fortnight of his purported sickness which is said to be a misconduct under various provisions of the Standing Order.
4. In relation of the said charges the following documents were to be relied upon:
” 1. Your attendance record from January 25, 1982 to February 14, 1982.
2. Your application dated January 30, 1982
3. Your leave application dated February 24, 1982
4. Circular No. CAL:PER:R&R: 1:3547 dated September 3, 1974.
5. Circular No. CAL:PER:R&R: 5548 dated January 15/19, 1981.
6. Circular No. 511/81-(17) dated January 25, 1982.
7. Any other witness or evidence having direct or indirect hearing to the charge”
5. The second charge as against the petitioner stated that he was arrested by the Police under Sec. 4 of the Customs Act on January 27, 1982 and was granted bail on January 29, 1982 but he did not inform his Department about the said arrest which constituted a misconduct for violation of the following provisions of the Standing Order.
Clause 1: Every employee of the Corporation shall at all time maintain absolute integrity and devotion to duty and conduct himself in a manner conducive to the best interest, credit and prestige of the Corporation.
Clause 16(8): Breach of any Standing Order or any law or rules applicable to the establishment.
Clause 16(13) : Commission of any act subversive of discipline or of good behaviour in the premises of the establishment.
The evidence in support of the said charges were to the following effect:
1. Letter No. SL(VI)-44:82P dated February 18, 1982 from Asstt. Collector of Customs & Supdt. Preventive Service.
2. Circular No. Cal/Per/R&R/1/6551 dated January 5, 1978.
3. Any other witness or evidence having direct or indirect bearing to the charge.
The petitioner was required to inform as to whether he desires to be heard in person and in case he wishes to examine or cross- examine witnesses which he was required to submit along with his written statesment, their names and addresses together with a brief indication of the evidence which such witness will be expected to give. Along with the aforementioned charge sheet no document had been annexed nor any statement of imputation of the charges had been given. It has also not been disclosed as to whether the department intended to examine any witnesses nor any list of witness was forwarded to the petitioner.
6. On receipt of the said charge sheet the petitioner submitted his written statement on April 7, 1982 denying and disputing the charges levelled against him. He stated the facts and explained the circumstances leading to his arrest. With regard to the second charge he explained the circumstances leading to his inability to consult a Doctor till January 30, 1982. He categorically stated that he had furnished the requisite information.
7. The respondent No. 1 however did not take any steps for appointing any enquiry officer or continuing with the departmental proceedings for about 3 years, and only on June 3, 1985 he was informed that his explanation was not found satisfactory and an enquiry into the charges framed against him would be held by the Deputy Operation Manager. A purported enquiry was held on June 21, 1985. The said enquiry report is contained in Annexure ‘B’ to the writ application.
8. The disciplinary authority by a letter dated April 17/18, 1986 stated:
“I am convinced that you deliberately absented from duty with effect from January 25, 1982 without any prior permission from the Competent Authority. Although you had submitted the leave request for regularisation of Sick Leave for 21 days, you did not care to send the progress report as required under the Rules in force. It is conclusively established that you deliberately tried to conceal the fact of your arrest on January 27, 1982. Although you were subsequently released on bail on January 29, 1982, it does not, in any way, absolve you of your responsibility for your keeping the Department Head informed of such arrest.
It may be mentioned that out of the seized goods from your possession on reasonable belief that those were smuggled, the Additional Collector of Customs vide his order dated April 5, 1983 released some of the seized items on your making payment of redemption fine while a few of them were confiscated absolutely and also some other articles including documents seized were released.
The above action on your part is indicative of the fact that you have not been maintaining absolute integrity and devotion to duty and have not been conducting yourself in a manner conducive to the best interest, credit and prestige of the Corporation.”
9. On the basis of the said findings a punishment of removal from service was proposed and the Finance Manager was also advised to settle the petitioner’s accounts for checking his commitment, if any.
10. The petitioner preferred an appeal against the said order before the Director, Indian Airlines on May 16, 1986 was dismissed by a non-speaking order dated September 11, 1986.
11. Mr. Biswas, the learned counsel, appearing on behalf of the petitioner has raised several contentions in support of his application. It was submitted that the petitioner has not committed any misconduct in terms of the provision of the Standing Order. It was next contended that the charge sheet had been issued with a pre-judged mind. It was further submitted that the petitioner had not been given any opportunity to adduce any evidence particularly the adjudication order passed by the Customs Authorities. He was also not been given the assistance of a defense helper. The learned counsel also contended that the fact that charge sheet was issued in the year 1982 and the enquiry was held in 1985 coupled with the fact that the salary of the petitioner was deducted from February 1982 for his period of absence would amount to abandonment of the charges by the respondent against the petitioner. The learned counsel further contended that the report submitted by the enquiry officer was vitiated as he has taken into consideration extraneous materials and the materials collected behind his back which did not form part of the enquiry proceedings. It was urged that the second show-cause notice also shows prejudice and bias on the part of the disciplinary authority. It was further submitted that the report of the enquiry officer is perverse being based on no evidence. The learned counsel further contended that the appellate authority had also failed to apply its mind.
12. Mr. Majumder, the learned counsel, appearing on behalf of the respondents, on the other hand, submitted that the petitioner must in the facts and circumstances of this case be held to have been given a full opportunity of being heard. It has further submitted that the petitioner neither chose to take the help of a defence helper nor produced any witness and thus the principles of natural justice have fully been complied with. The respondent No.2 in terms of his letter dated March 25, 1986 directed the petitioner to show-cause as to why punishment of removal from service could not be imposed upon him wherein it was stated that in case no reply is received from the petitioner within the stipulated period it would be presumed that he had no cause to furnish and the punishment proposed would be confirmed. The Petitioner gave reply on March 25, 1986 which is contained in Annexure ‘D’ to the affidavit-in-opposition. The learned counsel further submitted that the petitioner was also punished earlier on March 15, 1981 for being absent for a period 99 days in the year 1979 and for 96 days in the year 1980 without any intimation or grant of leave. In the said proceedings the petitioner was awarded a punishment of reduction in his basic pay by two incremental stage in the time scale for a period of one year. The leaned Counsel also submitted that the petitioner being a workman ought to have taken recourse to the provision of the Industrial Disputes Act. It was pointed out that the petitioner himself told on the closing date of enquiry that he has not brought any witness in his support nor did he pray for any adjournment to produce the witnesses later on. The learned counsel contends that in a domestic enquiry the guilt of the delinquent officer is not required to be proved as is required in a criminal case.
13. As indicated hereinbefore the basic facts are not much in dispute. This case, however, depicts absolute lack of knowledge on the part of the enquiry Officer as to how to conduct a domestic enquiry in a disciplinary proceedings. The enquiry Officer’s report is contained in Annexure. ‘B’ to the Writ application. The enquiry officer himself stated that he had investigated as contradistinguished from making enquiry into the charges of misconduct on June 21, 1985 with Dr. R.B. Easwar as presenting officer. He could not have investigated into the charges with the Presenting officer. The enquiry proceeding was held only on June 21, 1985 and on that date only the petitioner and the presenting officer were present. The enquiry Officer started the enquiry by putting questions to the petitioner. The petitioner pleaded not guilty to the charges. In answer to the query as to whether he would like to defend his case by himself or take help of a friend, the petitioner categorically stated that he would like to defend himself if there is any case at all but he would like to prefer to take help of a friend and since there was no friend available on that date, he would like to defend himself.
14. The enquiry officer then asked the presenting officer to present the case whereupon the presenting officer addressed the enquiry officer on the charges which was argumentative and not explanatory in nature. Thereafter the enquiry officer asked the petitioner as to whether he agrees to the fact narrated by the presenting officer to which the petitioner stated that he had few clarification to be made whereafter he made certain statements. The petitioner thereafter was asked as to whether he would like to examine any document submitted by the presenting officer to which the petitioner answered that he had already examined. It is idle to contend that the petitioner did not question the veracity of the said documents. It was for the respondents to prove the said documents. With reference to the question that as to whether the petitioner intends to submit any document defending his statement in the enquiry, he said that he would submit some documents relating to the customs matter. The enquiry officer then asked the presenting officer as to whether he desires to have any clarification from the petitioner with regard to his statements whether after the presenting officer put certain questions to the petitioner. The said questions were not put in order to elicit any answer but the same was by way of a statement and/or argument. The enquiry officer then cross-examined the petitioner. The last question put to him was as to whether he had brought any witness of which he said no and the enquiry proceeding was completed.
15. From the said enquiry proceedings, therefore, it would appear that the same was not conducted in accordance with law. In the aforementioned domestic enquiry no witness was examined, no document was proved before allowing the presenting officer to argue his case. The petitioner was not given an opportunity to examine any witness or to produce his documents despite the fact that he clearly stated that he wanted to examine some witnesses and also produced some documents. The petitioner was also not given an opportunity to be represented by a defence helper, although he clearly stated that he would like to be defended by a friend but he defended himself on that date as his friend was not available.
16. The enquiry proceedings in my opinion is a mockery of the principles of natural justice. It is all the more surprising as to under what circumstances the enquiry officer conducted the I enquiry only on one day and concluded the same ‘ without giving any opportunity to the petitioner to place his documents. The petitioner, however, produced some documents before the enquiry officer on a later date. But from the enquiry report it appears that the same were not considered in their proper perspective. As indicated hereinbefore in his report itself the enquiry officer stated that he had investigated into the charges of misconduct with the presenting officer. He, therefore, candidly admitted that the domestic enquiry was not an enquiry in the eye of law but merely an investigation together with the presenting officer. In the enquiry report the petitioner was described as accused.
17. In his report, the enquiry officer allegedly found that the petitioner submitted a letter dated January 27, 1982 stating that he was sick due to respiratory allergy whereas on the other hand Dr. S.K. Shome issued a certificate that the petitioner had been suffering from Bronchitis from January 25, 1982 to February 14, 1982. He failed to consider the written statement filed by the petitioner that a mistake had been committed on his part on January 26, 1982 admittedly worked and he referred to the documents of the Indian Airlines Corporation. The said contention of the petitioner had not been taken into consideration. The petitioner was also not given an opportunity to explain the discrepancies if any. In fact as noticed hereinbefore, he was not even asked as to whether he would like to examine himself as a witness.
18. With regard to statement of the petitioner that he had sent the intimations with regard to his illness by post, the enquiry officer came to the conclusion that both the Operation Manager and the Assistant Chief Medical Officer did not receive any such intimation by post although in the enquiry proceeding neither the aforementioned officers were examined nor any statements made by them were brought as record. Even Issue Register which must be maintained in office had not been produced. The enquiry officer only examined the photostate copy of the certificate of posting and came to the conclusion that it was not possible to trace the Post-Office of origin where from the certification was stamped as the same was illegible. The learned Counsel for the petitioner has produced the original certificate of posting before me and submitted that from a perusal thereof it would clearly appear that the said letter had been posted from the Bally Gunje Post-Office. Thus no opportunity was given to the petitioner to produce the original certificate of posting. In any event, the name of the post-office from which the said applications were posted was an irrelevant fact as in law a presumption can be raised that a document sent by post has reached the addressee. It was for the department to examine a competent witness to rebut the said presumption. He in that connection took into consideration the alleged report made by the Vigilance Commission, Calcutta. The said enquiry report was neither produced nor the vigilance Officer, Indian Airlines had been examined as a witness. He was not even cited as a witness in the charge sheet. With regard to receiving of medical treatment by the petitioner, the enquiry officer neither considered the defence of the petitioner nor did he give an opportunity to him to prove his statements. The enquiry officer observed:
“There appears to be reasonable grounds to suspect that the F/P. Swapan Ray had intention to manipulate with his sickness and sick leave regulations, probably to cover up the episode of raid and arrest by the Customs Preventive Service Unit.”
19. In State of Assam and Anr. v. Mahendra Kumar Das and Ors. , the Apex Court held:
“But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and, without any apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent officer concerned. If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied on by the enquiry officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated.”
20. He thereafter observed that on September 3, 1982 after the petitioner’s release on bail by the Customs on January 29, 1982 he was arrested by the officials of the Bureau of Investigation of Calcutta in connection with involvement with Sanchaita Business and subsequently released on bail on September 4, 1982 and again on 3rd occasion on May 25, 1983 the petitioner was arrested by the Calcutta Police and subsequently released on bail. It is not understood as to under what circumstances the aforementioned matters were taken into consideration as neither any charges had been framed as against the petitioner in that regard nor from the enquiry proceedings it appears that the same was the subject matter thereof.
21. With regard to the second charge he relied on a circular letter dated January 5, 1976 which allegedly was displayed on all notice boards.
22. The petitioner denied to have any knowledge about the said circular letter. The said circular letter stated that all employees are, therefore, advised that in case of their arrest by police or confinement in jail they should forth with report the fact to departmental head failing which they will be liable for disciplinary action. The phraseology used is ‘advise’ and, therefore, it was possible for the petitioner to contend that the said circular was not mandatory in nature.
23. In any event, the petitioner was not arrested by the police. He admittedly was produced before the Magistrate on 28th and as he could not arrange for his bail, he was released on bail on January 29. In any event according to the petitioner he had intimated the said incident to the concerned authorities. The enquiry Officer referred to the petitioner’s letter dated January 30, 1982 which was received by the Operation Manageron January31, 1982 and observed that as no mention thereof was made regarding his arrest/raid etc., he had manipulated the sickness and it would be a reasonable inference that he was also manipulating the process of intimation regarding his arrest by claiming to have sent letters by post under certificate of posting with illegible stamps of the Post-Office. There has been no consideration of the petitioner’s defence in that regard.
24. As regards, to the petitioner’s obtaining treatment from a private Doctor, the respondent No. 1 did not examine the medical card as according to the petitioner he was permitted to be treated by a medical practitioner by the Doctor of the Indian Airlines. With regard to charge No. l, therefore, he came to the following conclusion:
“Under the circumstances, I am inclined to believe that Flight Purser, Swapan Roy had not fulfilled the requirement stipulated in our Standing Order and Law & Rules applicable to the establishment. In addition there was no necessity for him to report for duty when, as certified by his attending physician, he was advised rest and treatment, which tanta-mounts to bad time keeping as far as the establishment is concerned.
I. Therefore, hold him guilty under both the clauses as framed in the charge sheet i.e. Clause 10(8) and 16(34)
The findings of the enquiry officer are absolutely vague. With regard to charge No. 2 the enquiry Officer discussed in details as to the raid and seizure of various articles from his flat. He observed that the petitioner did not file any document although he promised to do so on June 24, 1985. It was obligatory on the part of the enquiry officer to fix another date so as to enable the petitioner to produce his evidence. He, however, admitted that the petitioner submitted some documents on September 18, 1985 which according to the petitioner could not be done earlier because of non-availability of the certified copies at the relevant time. The enquiry officer did not refuse to accept the said document but despite the same stated:
“But the authority of these documents cannot be accepted as neither they are photo copies of original Customs order nor properly attested. In any case these documents do not furnish any fresh information so as to change the course of the case. Without going into the claim of ownership of the goods, possession of contraband goods itself is cognizable offence under statutory regulations. By involving himself in such activities, with arrest and subsequent release on bail, F/P Swapan Roy has not behaved in a manner conducive to the best interests, credit and prestige of the organisation. He has himself accepted this fact in last para of page 6 of the proceedings. He is, therefore, found guilty of the charge of misconduct under clause 16( 1) and Clause 16(8)”
25. The petitioner evidently was not charged for involving himself in any such activities nor was he charged for possession of contraband goods which according to the enquiry officer is a cognizable offence. The petitioner was also not charged for commission of a misconduct that his behaviour and manner were not conducive of the best interest, credit and prestige of the organisation. In absence of such charges, the said findings must be held to be wholly illegal and perverse. The enquiry officer, however, held that the charge under clause 16(13) should be dropped as no offence has been committed in the premises of the establishment.
26. It is now well known that although principles of natural justice are based on two pillars, namely – (1) nobody shall be condemned without hearing & (2) nobody shall be a Judge of his own cause, in relation to domestic enquiry, fairness in the procedure is admittedly a part of the principles of natural justice. As in the instant case, there has been a gross violation of the principles of natural justice, the impugned orders must be held to be bad in law. Reference in this connection may be made to Khem Chand v. Union of India and Ors. .
27. The enquiry proceeding in my opinion, as would appear from the discussions made herein , before is vitiated for more than one reason:
1. No preliminary enquiry appears to have been held. The petitioner was not given an opportunity to be defended by a defence helper. The petitioner did not refuse to take the help of a defence helper. He merely stated that on the said date of enquiry he did not have any friend and thus he would defend himself on that date probably he could not have imagined that as departmental proceedings would be completed within one day. It was the duty of the defence officer to give him sufficient warning that he is entitled to the help of defence helper. Reference in this connection may be made to the Board of Trustees of the Port of Bombay v. Dilip Ku- mar Reghavendranath Nadkarni and Ors. reported in (1983-I-LLJ-1). The conduct of the petitioner also shows that probably he was not aware of his legal right that he could raise objections with regard to the manner in which the proceeding was conducted. Had he been allowed to be assisted by an experienced co-employee, the matter might have been different. In this situation, it was the duty of the enquiry officer to postpone the enquiry so as to enable the petitioner to have the assistance of a friend by adjourning the matter without completing the enquiry on the same day.
2. The way in which the entire enquiry proceedings was conducted is wholly unknown in law. A departmental proceeding is quasi-criminal in nature. The petitioner did not admit the charges levelled against him. It was therefore, obligatory on the part of the respondent to prove the charges by examining the documents and bringing on records the documents in a legal manner. It is now well known that documents do not prove themselves. Only because the petitioner stated that he has examined the document, the same does not mean that he had admitted the contents thereof. Although the provisions of the Evidence Act may not be applicable in a departmental proceedings but the principles of natural justice demand that a delinquent officer must know which documents would be considered by the enquiry officer for the purpose of arriving at a finding in relation to the charges levelled against- him. Even nobody presented the documents before the enquiry officer. The presenting officer was also required to be an impartial man and thus he could not be himself a witness. It is now well known that justice is not only to be done but must manifestly be seem to be done. The enquiry officer has not also assigned any reason as to why he did not consider it necessary to examine any witness for proving the charges as against the petitioner as the same were not admitted. Surprisingly the enquiry report is absolutely silent on the said point. Examination of witnesses to prove charge is the rule non-examination is an exception. The enquiry officer was, therefore, bound do record reason as to why examination of said witness are necessary. AH statutory rules have to be construed in the light of the provisions of the Act. Articles 14 and 16 of the Constitution of India are required to be considered so as to promote justice and avoid injustice or arbitrariness. Exercise of discretionary power involves two elements (1) Objective element and (2) Subjective element. The existence of exercise of an objective element is a condition precedent for exercise of the subjective element. It is true that as a general rule courts do not go into the merits of exercise of discretion, but is also equally true that broader the discretion, but it is also equally true that broader the discretion greater is enhance of its abuse. The decision of the Supreme Court in K.L. Tripathi v. State Bank of India and Ors, reported in (1984-1-LLJ-2) relied on by Mr. Mazumder is wholly misplaced. The said decision is not applicable to the fact of the matter at all.
3. The enquiry officer would not have considered any evidence behind the back of the delinquent. As noticed hereinbefore, he had taken into consideration various circulars, report of the vigilance officer of Indian Airlines and various other materials behind the back of the petitioner without giving him opportunity to rebut the same.
In Sawai Singh v. State of Rajasthan reported in (1986-II-LLJ- 390) it was held:-
“But a departmental enquiry entailing consequences like loss of job which nowadays means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.
The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirement of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties. See K.L. Tripathi v. State Bank of India (supra) . Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily lives and livelihood. Without such fairness democratic Governments cannot exist. Beyond all rules and procedures that is the sine quo non.”
It was further evident that the respondent did not bring the documents maintained by itself which had been pointed out by the petitioner in his written statement in aid of his own defence which was also violative of the principles of the natural justice. Even the log book maintained by the Respondents was not produced.
In Tanwir Eqbal and Ors. v. Union of India and Ors. reported in CLT 1989 (1) HC 129 a learned Single Judge of this Court, while considering a matter under Enemy Properties Act observed that before coming to the conclusion that the petitioner is a Pakistani national held that the assistant custodian of enemy property erred in not supplying all the papers and reports to the petitioner at the time of hearing and by reason thereof they were not in a position to defend themselves and make adequate submissions at the hearing.
4. In the enquiry proceeding the presenting officer was permitted to elicit certain clarification from the petitioner, which as noticed hereinbefore, was by way of the statement than question. No such opportunities had been given to the petitioner to elicit clarification from the presenting officer. Had any witness been examined by the department, the petitioner could have cross- examined him.
5. The enquiry officer had taken into consideration various irrelevant and extraneous matters which were not germane for the purpose of holding the enquiry. It is also well known that any punishment imposed on the basis of a finding which was not the subject matter of charges is wholly illegal. In State of Punjab v. Balkishen Singh, reported in 1972 SLR page 85 the Apex Court held that enquiry Officer cannot go beyond the complaint.
In Director (Inspection and Quality control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Anr. reported in 1987(2) CU page 344 this Court has clearly held that the enquiry officer must be free from bias. The enquiry Officer, on his own showing, proceeded to take into consideration the irrelevant materials and failed to take into consideration the relevant facts and thus committed a self misdirection.
6. The enquiry officer had failed to give an opportunity to the petitioner to adduce his evidence and produced the adjudication order which could have shown that the petitioner was neither found guilty of any charge of smuggling nor any personal fine was imposed on him. He merely was permitted to retain some articles on payment of redemption charges which, according to the petitioner, belonged to his other family members and friends. It is wholly immaterial as to whether the petitioner raised his objection thereto at the time of enquiry or not. The enquiry officer could not have conducted the enquiry beyond the charges framed as against the petitioner. The findings or nonexistent charges being wholly without jurisdiction was a nullity. Reliance placed by Mr. Mazumder on Burn and Co. v. Their Employees reported (1957- I-LLJ-226) is wholly misplaced. In that case, the allegations against the delinquent workman were admitted.
The enquiry Officer, disciplinary authority and the Appellate authority have utterly failed to consider these aspects of the matter.
7. The petitioner was charged only for not giving any intimation with regard to his illness and arrest. No charge thus was levelled against him that he had committed any offence under the Customs Act but all the concerned authorities appear to have taken the said fact into account by arriving at a conclusion that the petitioner had tarnished the image of the Indian Airlines. The finding of the enquiry officer to the effect that there appeared to be some reasonable ground to suspect that the petitioner had intention to manipulate with his sickness and sick leave regulation to cover up the episode of raid and arrest by the Customs Preventive Service Unit is wholly perverse as no material was brought to prove such allegations. It is now well known that suspicions or assumptions cannot take place of proof even in a domestic enquiry. The said findings are, therefore, perverse and thus suffers from the doctrine of irrationality. In Collector of Customs, Calcutta and Ors. v. Biswanath Mukherjee reported in 1974 CU Page 251 this Court held:
“It is however, equally well settled that even in a Writ Petition under Article 226, the Court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the Court is satisfied that the finding of the Tribunal is perverse and the finding of the Tribunal is considered to be perverse. If-
(a) The Tribunal has come to the finding on no evidence
(b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials
(c) The tribunal has not applied its mind to all the relevant materials and has not consider the same in coming to the conclusion.
(d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant.
(e) The Tribunal has disabled itself in reaching a fair decision by some consideration extraneous to the evidence and the merits of the case.
(f) The Tribunal has based its finding upon conjectures, surmises and suspicion.
(g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found.
(h) If the Tribunal in conducing the enquiry has acted in flagrant disregard of the rules of the procedure or has violated the principles of natural justice, where no particular procedure is prescribed.
In any of the above cases and in any other case where the court, in the particular facts of the case, considers the findings of the Tribunal to be perverse and where the Court is of the opinion that justice of the case so requires, the court is entitled to interfere and set aside the finding of the Tribunal on any question of fact. In such cases, the Court holds that there is an error of law on any of the above grounds.”
Reference in this connection may be made to Central Bank of India Ltd. v. Prakash Chand Jain, reported in (1969-II-LLJ-377) (SC).
8. The disciplinary authority also did not record his findings on each articles of charge although he was required to do so under the Airlines Service Regulation.
9. similarly the appellate authority who is required to consider the appeal did not grant any opportunity of hearing to the petitioner. Although he was not bound to do so, he could have considered the same. An appellate authority normally should give an opportunity of hearing to the appellant as in terms of the said regulations, he could do so. Nothing has been stated by the appellate authority as to why he refused to exercise his discreion.
10. The disciplinary authority at the time of the issuance of second show-cause notice has also proceeded with pre-conceived notion. For the foregoing reasons the impugned orders cannot be sustained.
Having regard to the nature and the charges levelled against the petitioner and keeping in view of the fact that the petitioner was punished in view of the fact that he was not paid his due salary for the period of absence and further in view of the fact that evidently the respondents themselves were not sure as to whether they should proceed with the departmental proceeding in as much as they did not appoint any enquiry officer as they did not show any inclination to proceed with the departmental proceeding for a period of 3 years. In my view, the punishment imposed on the petitioner is grossly disproportionate. Punishment awarded to a delinquent should not be severe and disproportionate to the charges of misconduct made against the delinquent officer. However, in view of the order proposed to be passed, it is not necessary to dilate on this issue any further. Reference in this connection may by made to recent decision of the Supreme Court in Sri. S.K. Giri v. Home Secretary, Ministry of Home Affairs and Ors. reported in (1996-I-LLJ-814).
11. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India is not concerned with the merit of the decision. This court does not act as an Appellate Authority. It is also not concerned with the sufficiency of the materials. But there cannot be any doubt whatsoever that in exercise of its writ jurisdiction this court can strike down a proceeding if it is of the opinion that the concerned authorities have committed illegality, irrationality of procedural impropriety in its decision making process. The respondent No. l has its own service regulations which is in the nature of Standing Order. Such standing orders have the force of law having been enacted under a statute. The respondents in conducting the enquiry has violated the provisions of the Standing Orders as also the principles of natural justice. It has filed to maintain the fairness in holding the enquiry. The respondent is a ‘State’ within the meaning of Article 12 of the Constitution of India. The manner in which the entire disciplinary proceeding was conducted evidently is violative of Article 14 of the Constitution. Even though under the statutory standing order, the enquiry officer has a wide discretion in the matter, it must be borne in mind that the courts do not countenance arbitrary power and unfiltered discretion. Discretionary powers are to be exercised reasonably with the spirit as well as letter of the empowering regulations. The enquiry report itself depicts as to how and in what manner such discretion has been exercised. In fact, to me, it appears that the enquiry officer was not even aware of the provisions of the Standing Order. There is nothing to show that even the petitioner before commencement of the enquiry was given a personal hearing, although he demanded the same in his written statements.
28. The submission of Mr. Mazurnder to the effect that the petitioner should have taken recourse of the provisions of the Industrial Disputes Act cannot be accepted. There cannot be any doubt that in a case of this nature the delinquent employee should normally take recourse to the provision of the Industrial Disputes Act. However, that does not mean that only because there exists alternative remedy, this court will refuse to exercise its discretionary jurisdiction. Alternative remedy as is well known is a self-imposed restriction. Rule was issued in this writ application on April 21, 1987. The matter has been pending in this court for more than 8 years now. To ask the petitioner to avail alternative remedy at this juncture in my opinion would be wholly improper.
In Miss Maneck Gustedji Burjarji v. Sarafazali Nawabali Mirza, the Apex Court has held:
“it is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases.”
In L.Hirday Narain v. Income-Tax Officer, Bareilly, the Apex Court has held:
“But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-Tax Officer under Section 35, but was not moved the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.”
29. Reference in this connection may also be made to Dr. Bal Krishna Agarwal v. State of U.P. and Ors. reported in 1995 Lab. 1C 1396 wherein it has been held:
“having regard to the aforesaid facts and circumstances we are of the view that the High Court was not right in dismissing the Writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the Writ Petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act is bound to be agitated in the Court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non suited the appellant on the ground of availability of an alternative remedy.”
30. It is further well known that when a Tribunal has acted ultra vires or where the order has been passed in violation of the principles of natural justice the High Court may entertain a Writ application in its discretion, See Babu Ram v. Zillah Parishad .
31. For the reasons aforementioned the impugned orders are set aside with liberty to the respondents to initiate a fresh disciplinary proceedings against the petitioner.
32. However, the question which may arise now as to what relief should be granted to the petitioner. Having considered the fact that no work had been taken from the petitioner for such a long time, the petitioner should be directed to be paid only 50% of the back wages.
In Orissa Cement Ltd. v. State of Orissa reported in AIR 1991 SC 1976, the Apex Court held:
“it will be appreciated that it is not always possible in all situations to give a logical and complete effect to a finding. Many situations of this type arise in actual practice. For instance there are cases where a Court comes to the conclusion that the termination of the services of an employee is invalid, yet it refrains from giving him the benefit of “reinstatement” (i.e. continuity in service) or “back wages”. In such cases, the direction of the Court does result in a person being denied the benefits that should flow to him as a logical consequence of a declaration in his favour.”
33. For the reasons aforementioned, this Writ application allowed with the observations and directions made hereinbefore but in the facts and circumstances of the case, there will be no order as to costs.
Later
34. Learned counsel for the respondent prays for stay of operation of this judgment, such prayer is refused.
35. All parties are to act on a signed copy of the minutes of (lie operative part of this judgment on the usual undertaking.