ORDER
Mukesh Kumar Gupta, Member (J)
1. The applicant, a Lascar in the office of CC Wing, CMP Centre and School, Neelasandra, Bangalore in the present application under Section 19 of Administrative Tribunals Act, 1985 has impugned the order dated 9th December, 2000 (Annexure A-9), imposing the penalty of removal from service by the Disciplinary Authority, i.e. respondent No. 2, which had been confirmed by respondent No. 1 by rejecting his appeal vide communication dated 4th June, 2001 (Annexure A-11). The relief sought in the present case are as follows:–
“(a) Issue a writ of certiorari or any other appropriate Writ, Order or Direction, quashing Order No. Nil, dated 4th June 2001 passed by the First Respondent, marked as Annexure A-11 and Order No. 268/44/C/KNG/9 dated 9.12.2000 passed by the Second Respondent marked as Annexure A-9 as the same are violative of Article 14 and 21 of the Constitution of India and also violative of CCS (CCA) Rules, 1965.
(b) Issue a writ of Mandamus or any other appropriate Writ, Order or Direction, directing the respondents to reinstate the applicant to his original post as if he has not been removed from service and grant him all the consequential benefits like arrears of salary, seniority, increments and for other benefits which he is entitled to.
(c) Grant the Applicant the cost of this proceedings and pass such other relief/ reliefs as this Hon'ble Court deems fit to grant, under the circumstances of the bove case in the interest of justice and equity." 2. Undisputed facts of the case are as under:--
The applicant, who was initially appointed as a temporary peon on 16.8.85 was absorbed on 26.9.91. On 5th November 1999, he fell ill and accordingly took treatment from CGHS and also absented himself from duty. The applicant joined duties on 28.11.99 and worked in the office from 28.11.99 to 30.11.99. He fell ill once again on 1 st December 1999 and continued to remain absent till 22nd December 1999.
3. Vide memorandum dated 22.12.99 (Annexure A-2), the respondent No. 2 issued charge-memo under Rule 14 of CCS (CCA) Rules, 1965, which contained only one article of charge. The said article of charge as well as the statement of imputation of misconduct in support of the said charge reads as under:–
Article-I
That the said Shri K. Nandagopal while functioning as a civilian permanent lascar in CMP Centre and School has been absenting himself from duty without leave/permission on the following dates:–
Annexure-II
Statement of Imputation of Misconduct in Support of the Articles of Charge Framed Against Shri K. Nandagopal, PT/Lascar
That the said Shri K. Nandagopal Pt/Lascar has committed an act of gross misconduct that as per Rules 7, 8, 16 of the Central Civil Service (Leave) Rules, 1972, Leave cannot be claimed as a right, unless awaiting the order/ granted by the competent authority. Breach of Law, wilful absence is an act of “Gross Misconduct” and violation of Rules 3, 1(i) (ii) and (iii) of Central Civil Service (Conduct) Rules, 1964.
Inspite of several warning letters issued to Shri K. Nandagopal Pt./Lascar, he
has failed to produce the evidence regarding his illegal absence and having frequent habitual absence without permission.”
(Emphasis supplied)
4. In support of the said charge one CHM Mahatim Dubey was cited as a witness, besides 2 documents were listed under Annexure–III. An Inquiry Officer was appointed vide order dated 22.2.2000. On 13,3.2000, the Inquiry Officer straightaway asked the applicant to submit his statement showing the reasons for being absent as well as medial documents in support of his being unfit for duty and the reference made by the CGHS to the General Hospital, the statement and certificates etc., were directed to be submitted by 16.3.2000. Vide communication dated 4th May 2000, the Inquiry Officer stated that medical certificate produced by the applicant is not as per the requirement asked from CGHS, since the applicant had not submitted his explanation for late submission of medical certificates, he was instructed to produce the documents before 13.5.2000 and the inquiry was fixed for 15.5.2000. The applicant submitted his detailed communication dated 13.5.2000 to respondent No. 2 wherein it was pointed out that he had produced the medical certificate for 20 days from 1stDecember, 1999 to 20th December, 1999 before the Inquiry Officer who did not accept the said certificate stating that the Doctor had written the same by left hand. It was also pointed out by the applicant that presently he was staying in his sister’s house at Anepalayam. A copy of the said communication was sent to the Inquiry Officer too.
5. A perusal of the Articles of Charge shows that there are 3 spells of alleged absence, i.e. (a) 5th November, 1999 to 20th November, 1999 (b) 25th November, 1999 to 27th November, 1999 and (c) from 1st December 1999 till the date of issuance of the charge-memo dated 22.12.1999.
6. From the records, it appears that the Inquiry Officer submitted his report dated 26,9.2000, whereby he had concluded that he had seen the documents of the case in the presence of the presenting officer and independent witness and he was of the opinion that the applicant was absent for the aforementioned period without prior permission of the leave sanctioning authority. A perusal of the said inquiry report also shows that UDC, Ms. Chaya Kumari of CMP Centre and School appeared before the Inquiry Officer as an independent witness to watch the proceedings on 16.6.2000.
7. A perusal of the said inquiry report, particularly para 8 states that the preliminary hearing date was fixed for 16.6.2000 and the applicant did not appear on the said date. The applicant appeared before the Inquiry Officer on 25.9.2000 and Inquiry Officer recorded the proceedings on the said date itself and submitted his finding on the very next day which was also signed by the applicant as well as alleged independent witness Ms. Chaya Kumari, UDC.
8. Based on the said inquiry report, the respondent No. 2 being the Disciplinary Authority vide order dated 9.12.2000, while agreeing with the findings recorded by the Inquiry Officer and also based on his “previous records” imposed the penalty of removal from service. Thereafter, the applicant submitted a detailed appeal dated 9.1.2001, wherein a host of grounds had been urged, namely, (i) the Inquiry Officer acted as a presenting officer and he cross-examined the applicant; (ii) Inquiry Officer’s report is biased and the entire procedure followed by the Inquiry Officer is against the provisions of CCS (CCA) Rules; (iii) the department had not produced any documents; (iv) there is no proper consideration of the applicant’s case both by the Inquiry Officer as well as Disciplinary Authority; (v) the penalty order imposed is manifestly illegal without the authority of law; (vi) the Disciplinary Authority had not considered any of the points raised by the applicant in his reply to the show cause notice before the imposition of the penalty; (vii) the order passed by the Disciplinary Authority is without any application of mind; (viii) the Inquiry Officer has relied upon his past service records without issuing show cause notice as well as the Disciplinary Authority imposed the punishment based on past record, without making the same as charge; (ix) the action of the Disciplinary Authority as well as the Inquiry Officer is perverse; (x) the order passed by the Disciplinary Authority is a non-speaking order and no reasons have been assigned in the said order as to on what basis the authority has come to the conclusion that he was unauthorisedly absent; (xi) the medical certificate produced by the applicant had not been considered particularly when neither the genuineness of the said medical certificates was doubted nor the department got the medical certificate verified from the concerned authorities as directed by the Inquiry Officer in his inquiry report; (xii) no witness had been examined on the side of the department; (xiii) the principles of natural justice grossly violated, etc.
Ultimately the applicant made a mercy appeal to the Appellate Authority to reinstate him in the post concern with all consequential benefits.
9. The said detailed appeal had been rejected by the Appellate Authority, i.e., respondent No. 1 vide communication dated 4.6.2001. It would be necessary to reproduce the said communication in its entirety which reads as follows:
“1. I have carefully examined all the facts and circumstances of the case in the light of the records of the instant case and my findings are as under:–
The individual was an habitual absentee and he was given number of chances to curb his habit of absenting himself from duty without prior permission from the competent authority. He has had two minor and one major punishments before the present sentence of “Removal” from service which shall not be a “Disqualification” for future employment. His retention in service would be prejudicial and detrimental to discipline and would encourage other like minded persons to commit acts of indiscipline and misconduct.
2. I, therefore arrive at the same decision that no remission of the sentence of dismissal is called for in his case.”
10. The respondents have filed their reply and contested claim made by the applicant. According to them, the applicant was a habitual absentee and he was absent from duties about 81 times. 2 minor penalties of withholding of one annual increment as well as a censure was imposed vide order dated 24.3.1998 and 10.8.1998 respectively. Another major penalty of reduction to lower time scale of pay was also imposed on the applicant vide order dated 27.11.1998. The respondents have also stated that the applicant also absented himself from duty without permission from the competent authority for the period mentioned in charge-memo dated 22.12.1999. They have also stated in reply, para 6, that “the applicant did not submit his medical certificate and other documents as asked by the Inquiry Officer during the inquiry even after repeated letter issued by the Inquiry Officer.” (emphasis supplied) The respondents have reiterated that the Inquiry Officer followed the inquiry procedure as per the CCS (CCA) Rules, 1965; that the applicant was given reasonable opportunities to curb his habit of absenting himself, often which in Central Defence Establishment caused inconvenience in the smooth functioning of the administration and also setting a wrong precedence in the minds of co-workers; that the order passed by the Disciplinary Authority as well as the Appellate Authority are speaking orders.
11. We have heard learned Counsel for both sides at great length and have carefully perused the records including the original records of the disciplinary proceedings produced by the respondents. The learned Counsel for the applicant has by and large reiterated his submissions which formed part of the appeal and which aspect we have also noted in para hereinabove.
12. The learned Counsel for the applicant has strenuously urged that the Inquiry Officer did not act with fairness, and thus he acted as a presenting officer as well and, had cross-examined the applicant by putting reading questions to him, which is evident from the perusal of page 3 of the Inquiry Officer’s report. At this stage, it would be relevant to reproduce the relevant extracts from the said inquiry report particularly from page 3 onwards, which reads as under:
“Questions by the Inquiry Officer to Shri K. Nandagopal the charged Government servant.
Q. 1. What was the disease you were suffering from during the period of absence?
Ans. I was suffering from shoulder pain (Spondylosis) and abdomen problem.
Q. 2. Where did you get your treatment done?
Ans. I was treated in Govt. General Hospital, Jayanagar, Bangalore.
Q. 3. The medical certificate produced by you covers the period from 01.12.99 to 20.12.99 and not the period of absence from 05 Nov. 99 to 27 Nov. 99. What do you to say in this regard?
Ans. I had asked for sick leave from 05 Nov. 99 to 27 Nov. 99, but was granted only from 21 Nov. 99 to 24 Nov. 99 as I had no leave to my credit.
Q. 4. Why did you not inform the Quartermaster’s office that you were sick and not in a position to come for duty.
Ans. It was an oversight on my part. But now I promise that I will never be absent without proper leave.
Q. 5. You have been absent without leave many times since June 2000 to Sep. 2000. You were absent for 68 days from 03 July to 08 Sep. 2000. What is your answer for this?
Ans. I was sick and was taking treatment as I could not perform sex. Therefore, I could not come for duty. I will never again be absent from duty.
Q. 6. Do you take liquor and are you a heavy drinker?
Ans. I used to drink before but now I have stopped drinking and I am improving my habits.
Q. 7. Are you a member of CGH Scheme? Ans. Yes.
Q. 8. Are you aware that prior sanction is necessary for absenting from duty or proceeding on leave.
Ans. Yes, I am ware of it.
Questions by Presenting Officer to the Charged Govt. servant, Q. 1. Why did you not to go CGHS?
Ans. I did go to CGHS first from there I was referred to Govt. Hospital to show myself to a specialist.
Cross Examination by Shri K. Nandagopal the charged Govt. servant.
16. Shri K. Nandagopal declines to cross examine the witness. The Inquiry Officer asked whether he wishes to produce any witness on his defence. Shri K. Nandagopal declines to call any witness in his defence.
17. The Inquiry Officer then asked Shri K. Nandagopal whether he wishes to make any statement.
Shri K. Nandagopal declined to make any statement, Sd/- Sd/- No. 7856345 W Shri. K.B. Jayal K. Nandagopal, The charged Lt. Col. Govt. Servant Inquiry Officer 26 Sep. 2000 26 Sep. 2000 Sd/- Shri N.R. Lobithakashan Presenting Officer 26 Sep. 2000 Sd/- Mrs. Chaya Kumari, UDC Independent Witness 26 Sep. 2000
Note : The Inquiry Court examined the attendance register and it revealed that No.7856345 W. Lascar Shri K. andagopal has been absent from 05 Nov. 99 to 27 Nov. 99 and from 01 Dec. 99 to 22 Dec. 99 (with 5 days leave from 21 Nov. 99 to 24 Nov: 99) which totals to 41 days absence. On further examination of the register it was revealed that the charged Govt. servant generally examined himself from duty. The Inquiry Court also examined the medical certificates produced by him,”
(Emphasis supplied)
At the outset we may note that though as per para 3 of the enquiry report it had been stated that: “UDC Ms Chaya Kumari of CMP Centre and School appeared before the Inquiry Court as independent witness to watch the proceedings at 1000h on 16 Jun 2000,” but the said independent witness signature appeared on the proceedings dated 26th Sep. 2000, as extracted hereinabove. There is no mention anywhere in the said inquiry report, how and in what capacity the said alleged independent witness participated the proceedings after 16.6.2000 and signed the proceedings dated 26.9.2000.
13. From the perusal of the above, it is crystal clear that the Inquiry Officer did cross-examine the applicant at great length by putting various questions which were outside the purview of even the charge-memo dated 22.12.99. A specific reference in this regard could be had to questions No. 5 and 6, extracted hereinabove. In any case the applicant’s alleged absence from June, 2000 to September, 2000 was not an issue in the charge-memo dated 22.12.1999 as he had joined duties on 22.12.99. (Emphasis supplied) The Inquiry Officer examined the attendance register as well as the medical certificates produced by the applicant which is evident from the note portion extracted hereinabove. The Inquiry Officer has also admitted and observed in paras 3, 6, 9 and 10 by stating that the applicant submitted medical certificate for his absence from 1st December 1999 to 20th December 1999 from General Hospital, Jayanagar, Bangalore and further stated that the “department should get the medical certificate verified regarding his genuiness.”
(Emphasis supplied)
14. Despite the above categorical direction made and finding recorded by the Inquiry Officer, the respondent in their reply, para 6, have stated that the applicant “did not submit his medical certificate and other documents as asked for by the Inquiry Officer during the inquiry, even after repeated letters issued by the Inquiry Officer.” This stand of the respondents is an erroneous and misleading statement, as well as ex-fade contradictory and contrary to the records. On a query posed to the respondents with reference to para 10 of the Inquiry Officer’s findings that the department should get the medical certificate verified regarding its genuineness, the learned Counsel for respondents on instructions from the departmental representative present in the Court, informed us that no such verification of the medical certificate was got done. The learned Counsel for the applicant had already placed on record the prescriptions issued by the CGHS, Bangalore as well as a reference made by them to the Govt. Hospital, Jayanagar, Bangalore, on 20.11.99 besides the medical certificate issued by the Senior Specialist in Surgery, Jayanagar General Hospital, Bangalore, which is a government hospital. It is relevant to note neither the genuiness of the said document had been verified at any stage nor the applicant was sent for second medical examination. Once a medical certificate from a Government hospital is produced in support of the illness suffered by the applicant for the period of his alleged absence and its validity and genuiness remained undoubted unless proved otherwise. In such circumstances, it could not be held authoritatively that the applicant absented himself wilfully for the period in question. Therefore, the contentions raised by the learned Counsel for the applicant that the findings of the Inquiry Officer are perverse and not supported by documents are justified and have to be accepted. Unless absence is wilful and deliberate, it need not be a gross misconduct. The wilful absence on the part of the applicant has not been established during the course of enquiry.
15. Similarly, it is seen that the Inquiry Officer had cross-examined the applicant at length, which is beyond his jurisdiction. The learned Counsel for the applicant has drawn our attention to 1996 Vol. 16 ATC 822 M.K. Varadarajan v. Senior Deputy Director General, ASME Wing, Geological Survey of India, in support of his contention that the questioning of charged employee by the Inquiry Officer is not justified and such a procedure has not been accepted by the Tribunal. We have perused the said judgment and find that in that case also, the Inquiry Officer had cross-examined the applicant therein in regard to the particulars of the charges levelled against him. The object of questioning the delinquent government servant by the Inquiry Officer is only to give him an opportunity to explain the incriminating circumstances, appearing tin the evidence adduced against him, which is not the situation and facts in the present case. The ratio laid down in the said judgment is squarely applicable to the facts of the present case. The learned Counsel also relied upon the judgment of Sri Radhakrishna Setty v. General Manager, ILR 1998 Kar. 897, wherein it has been held that though the strict rules of Evidence Act would not apply to the departmental proceedings but certainly the principles which are based on the rules of natural justice would definitely apply. Placing reliance upon a judgment of the Hon’ble Supreme Court in Meen Glass Tea Estate v. The Workmen, AIR 1963 SC 1719 the Court concluded that if the Inquiry Officer also acts as a prosecutor or witness, then there is clear violation of rules of natural justice and his findings are liable to be set aside. The only obligation which the law casts upon the Inquiry Officer while eliciting the truth cannot go beyond his limit as an Inquiry Officer and play the role of a prosecutor giving an indication that he was not fair and unbiased.
16. In the present case, the Inquiry Officer himself had questioned the applicant which has to be treated as examination-in-chief as well as cross-examination of the applicant by the Inquiry Officer, which is not permitted under the law laid down on the said subject. While cross-examining the applicant, the Inquiry Officer, in fact, assumed the role of a presenting officer as well as of prosecutor.
17. Though the Inquiry Officer in concluding portion of inquiry report dated 26.9.2000 stated that he had heard and seen the documents of the case in the presence of the presenting officer and “independent witness” no material has been produced before us to show that the Annexure-IV of Charge-Memo dated 22.12.99 was amended, modified to include UDC Ms. Chaya Kumari, as a witness, A perusal of para 3 of the inquiry report itself states that UDC, Ms. Chaya Kumari of CMP Centre and School appeared before the Inquiry Court as independent witness to watch the proceedings at 1000 hours on 16.6.2000 but the inquiry report and proceedings dated 26.9.2000 had been signed by Ms. Chaya Kumari. At no stage it has been pointed out as to how and when the Annexure-IV of charge-memo dated 22.12.99 containing the list of witness as CHM Mahatim Dubey was amended and how this new witness was allowed to appear in the said departmental inquiry. On the one hand, the Inquiry Officer stated that Ms. Chaya Kumari was allowed to appear as independent witness “to watch proceedings” on 16.6,2000 and on the other hand it is stated that the Inquiry Court having heard and seen the documents in the presence of “independent witness,” he came to the conclusion record in the Inquiry report, there is nothing on record to suggest how and when the Mahatim Dubey cited as witness in Annexure-IV to charge-memo was dropped. There is no examination of the said witness. It would be suffice to say that the Inquiry Officer did not act either fairly or reasonably and in accordance with the law, particularly, in the light of facts as mentioned hereinabove. Under no circumstances the alleged independent witness can be allowed to continue to appear and append his/her signature even on the subsequent proceedings including the enquiry report.
After cross examining the applicant at length, the Inquiry Officer has recorded that the applicant “declined to make any statement,” which is not a correct procedure adopted by the Inquiry Officer.
18. The next contention raised by the learned Counsel for the applicant is that the Disciplinary Authority failed to consider the submissions made by him in reply dated 7.11.2000 to the show cause notice dated 23.10.2000. A perusal of the said reply dated 7.11.2000 would show that the applicant had specifically pleaded that he was recommended medical rest by the Doctors at CGHS and referred him to the Jayanagar General Hospital. He also contended that he had made an application seeking leave and accordingly annexed the copy of the postal receipt dated 16.11.99. Therefore, he contended, that in these circumstances he cannot be blamed for his alleged wilful absence which was beyond his control and he cannot be blamed for not taking prior permission from the leave sanctioning authority. As noted hereinabove, the applicant had produced the prescriptions slip by the CGHS as well as Senior Specialist in Surgery, Jayanagar General Hospital. A perusal of the prescriptions issued by the CGHS show that the applicant was advised complete bed rest and certificate to the said effect was also issued b the CGHS. According to the said prescription slip, the fitness certificate was due on 25.11.99. It is admitted fact that the applicant had produced the medical certificate from Senior Specialist in Surgery, Jayanager General Hospital which has not been taken into consideration. On the other hand, the Inquiry Officer insisted that the medial certificate should be produced from the CGHS. Once it is admitted that the applicant was under the medical treatment of Jayanagar General Hospital, Bangalore, from 1st December 1999 to 20th December 1999, then under no circumstances any other medical authority except where the applicant was under treatment, could issue a medical certificate. Moreover the certificate was issued by the Senior Specialist in Surgery, Jayanager General Hospital. As such, the insistence on the part of the Inquiry Officer asking the applicant to produce the medical certificate from CGHS was totally unwarranted and unjustified. As noted above, the impugned penalty order dated 9.12.2000 did not record any reasons as to why the written explanation sought for and availed by the applicant is not considered as satisfactory. In the context of the said written explanation sought for and as availed by the applicant, the Disciplinary Authority had furnished no reason much less than justifiable reason in the said impugned penalty order dated 9.12.2000 except to record a bald statement to the following effect in para 5, which recites as under:
“5. And Whereas Shri K. Nandagopal, permanent lascar has given a written explanation, which is not considered as satisfactory by the undersigned.”
Perusal of the said paras would show that there is neither any discussion made on the representation submitted by the applicant on 7.11.2000 nor any reasons given/communicated as to why the medical certificate submitted by the applicant, seeking grant of leave on medical ground were not found justified and acceptable. The applicant had also furnished an explanation in the said reply dated 7.11.2000 about his leave from 5.11.99, which aspect too has been totally overlooked without any justification.
19. The learned Counsel had relied upon a judgment of the Hon’ble Supreme Court in AIR 1994 SC 215, Union of India v. Giriraj Sharma, wherein an official who had over stayed the period of leave by 12 days was dismissed from service, which penalty was found to be harsh and disproportionate by the Hon’ble Supreme Court in the facts of the said case as he had pointed out therein that it was not his intention to wilfully flout the order. Though the facts of the said case and the present O.A. are totally different, but the ratio laid down in the said case that if an individual who proceeds on leave and later on seeks extension of the said leave period is denied the extension and under compelling circumstances continues to remain absent for justified reasons should not be visited with major penalty, particularly when the intention is not to flout the authority’s order. In the present case, admittedly the applicant was under the medical treatment of the Government General Hospital and as such it could not be alleged that there was a deliberate and “wilful absence” on the part of the applicant.
20. The learned Counsel next strenuously urged that the Appellate Authority’s order dated 4.6.2001 is bald and cryptic inasmuch as the various contentions raised by the applicant in his detailed appeal dated 9.1.2001 remain unconsidered and controverted. We have already extracted and noted various contentions raised by the applicant in his appeal in para 8 hereinabove as well as the appellate order dated 4.6.2001. In support of the said contention, the learned Counsel has relied upon AIR 1970 Supreme Court 1302 Mahavir Prasad v. State of U.P. The Hon’ble Supreme Court have in para 6 of the said judgment held as under:
“The practice of the executive authority dismissing statutory appeals against order which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law.”
Similarly in para 7 of the said judgment, the Hon’ble Court further held that:–“Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the ground on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the Appellate Authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.
The ratio laid down in the said judgment is squarely applicable to the facts and circumstances of the present case.
21. A perusal of the appellate order dated 4.6.2001, which had been extracted in para 9 hereinabove would ex-facie reveal that there is nothing on record to show that the various contentions raised by the applicant in his appeal had been considered at all by the Appellate Authority as no reasons on the said aspects had been recorded and communicated in the said appellate order. As such, we have no hesitation to record that the said appellate order failed to consider the said contention and communicate any reasons in rejecting the well documented and detailed appeal.
22. We wish to make it clear that we have not re-appreciated evidence in the present case. We examined the report of the Inquiry Officer as well as other material only to find out as to whether the finding recorded by the Inquiry Officer as well as the Disciplinary Authority is based on some relevant materials on record. Moreover, the Hon’ble Supreme Court in Kuldip Singh v. Commissioner of Police (1999) 2 SCC 10=1999(3) SLJ 111 (SC), has held as under:–
“6. …. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.
7. In Nand Kishore Prasad v. State of Bihar it was held that the disciplinary proceedings before a domestic tribunal are of quasi judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious stale as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty an in that event, the findings recorded by the Inquiry Officer would be perverse.
(Emphasis supplied)
8. The findings recorded in a domestic inquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence…..”
In 1997(2) SLJ 126 (SC), Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh, the Hon’ble Supreme Court held that “The High Court, in the proceedings under Article 226 docs not act as an Appellate Authority but exercises within the limits of judicial review to correct error of law or procedural errors leading to manifest injustice or violation ofprinciples of natural justice.”
(Emphasis supplied)
In our considered opinion the law so laid down by the Hon’ble Supreme Court is squarely applicable in the facts of the present case. Recently the Hon’ble Supreme Court in 2002(7) SCC 142, Sher Bahadur v. Union of India, has observed that:
“7. It may be observed that the expression “sufficiency of evidence” postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the Charge Officer, is not evidence in law. The mere fact that the Inquiry Officer has noted in his report, “in view of the oral, documentary and circumstantial evidence as adduced in the circumstantial evidence as adduced in the enquiry,” would not in principle satisfy the rule of sufficiency of evidence.”
(Emphasis supplied).
The law so laid down is squarely applicable in the facts of the present case.
We are conscious of the settled proposition of law that the report of the Inquiry Officer cannot be reviewed by this Tribunal if there are relevant materials on record and the findings of the Inquiry Officer are based on such material facts. As we have observed hereinabove that the findings recorded by the Inquiry Officer are contradictory and also in violation of the principles of natural justice and fairness. They are based on no material facts. There is no evidence to show that the applicant was ‘wilfully’ absent. Even the procedure followed by the Inquiry Officer is against the principles of natural justice.
23. On the other hand the learned Counsel for the respondents have basically urged the settled proposition of law that firstly this Tribunal cannot re-appreciate the evidence and the Tribunal has no jurisdiction to go into truth or correctness of the charges, findings of the Disciplinary Authority are immune from interference within the limited scope of judicial review by this Tribunal. Secondly, the applicant was on unauthorised absence on more than one occasion and in past various penalties have been imposed upon him by the concerned authorities. In support of the first proposition of law, that the disciplinary proceedings cannot be re-appreciated by this Tribunal, etc., the learned Counsel has relied upon the following citations:
(1) 1997(4) SLR 242=1997(5) SCC 478=1997(2) SLJ 238 (SC)-- Govt. of A.P. v. B. Ashok Kumar. (2) 1996(1) SLR 816 (SC)=1996(7) SCC 509--State of Tamil Nadu v. S. Subramanyam. (3) 1997(5) SLR 232 (SC)= 1997(7) SCC 101 = 1998(1) SLJ 63 (SC)--Govt. of Tamil Nadu v. K.N. Ramamurthy. (4) 1996 Vol. 4 SLR 603 (SC)= 1996(5) SCC 474=1996(3) SLJ 43 (SC)--State of Tamil Nadu v. Thiru K. V. Perumal. (5) 1999 Vol. 4 SLR 292 (SC)=1999(5) SCC 762--Bank of India v. Degla Subramanyam. (6) 1997( 1) SLR 732 (SC)=1997 (3) SCC 387--Secretary to Govt. v. ACJ Britto.
We have carefully gone through the said judgments and are in respectful agreement with the propositions of law laid down therein that under judicial review, this Tribunal cannot re-appreciate the evidence nor go into truth or correctness of the charges. We wish to reiterate that we have not reappreciated the evidence in the present case.
24. There is yet one another aspect of the law, which has been totally ignored by the learned Counsel for the respondents, particularly as noted hereinabove in (1999) 2 SCC page 10 where the Hon’ble Supreme Court has reiterated the other aspects of law by stating that where the findings recorded by the Inquiry Officer as well as Disciplinary Authority are based on no evidence, the impugned action is illegal and unjust in law.
25. The learned Counsel for the respondents have also relied upon the judgment to the effect that in case of unauthorised absence, Tribunal will not be justified in substituting its own view to that of the Disciplinary Authority and accordingly cited 2001 Vol. I SLR 261 Punjab and Sind Bank v. Sakattar Singh, wherein it has been held that once the person is on unauthorised absence and there is no record to substantiate the contention raised by the delinquent official the Court cannot interfere with the penalty. In the said case, the respondent was unable to produce any document in support of his contention. Moreover, the Bank in the said case has resorted to terminate the delinquent official by resorting the terms and conditions laid down in Bipartite Settlement. The Hon’ble Supreme Court in para 5 observed that: “if the respondents had submitted an explanation regarding his unauthorised absence or placed any material before Court that he did report for duty but was not allowed to join duty, an inquiry may have been necessitated but not otherwise. In this case, the employee-applicant had defaulted in not offering any explanation regarding his unauthorised absence from duty nor did he placed any material to show that he reported for duty within 30 days of notice as required by Clause (xvi) of IV Bipartite Settlement.” The facts of the present case are totally different than the facts in the above noted Sakatar Singh’s case. As such, the said judgment is of no help to the respondents. The learned Counsel for the respondents also relied upon 2000 Vol. 3 SLR 129=2001 (2) SLJ 89 (SC)–Syndicate Bank v. General Secretary, Syndicate Bank Association and Anr. The facts of the said case also reveal that the leave was not sanctioned by the Bank and the deliquent official was communicated about the said decision, yet the delinquent official did not report for duty. The opportunity to explain his absence was afforded to the official in the said case, but he did not respond. Accordingly, the Syndicate Bank by enforcing the terms of the Bipartite Settlement terminated the services, with due respect we may state that the facts of the present case are totally different and as such, the said judgment has also no relevance to the facts of the present case. The next judgment cited by the respondents is 1997 Vol. 4 SLR 590=1998(1) SLJ 148 (SC) — State of Punjab v. Bakshish Singh. In the said case, a constable was absent from duty without leave and punishment of dismissal was imposed by the State. The law laid down in the said case is that it is for the Disciplinary Authority to pass appropriate punishment; the Civil Court cannot substitute its own view to that of the disciplinary as well as the Appellate Authority on the nature of punishment to be imposed upon the delinquent officer. In view of the findings of the appellate Court that the absence from duty by the constable is a grave misconduct, the appellate Court ought not to have interfered with the penalty. There is no dispute about the proposition of law laid down in the said judgment of Bakshish Singh. However, the said judgment has no relevance and application to the facts of the present case particularly when the findings recorded by the Inquiry Officer and Disciplinary Authority in the present case are based on no material. They arc misconceived in nature and suffer from gross procedural irregularities, besides in violating of the principal of natural justice and fair play.
25A. In view of the findings recorded hereinabove, and looking from various angle which we have analysed in detail, the impugned penalty order dated 9.12.2000 (Annexure A-9) as well as appellate order dated 4.6.2001 (Annexure A-11) being illegal and violative of the settled law are liable to be set aside and quashed.
26. Accordingly the O.A. is allowed. Impugned orders dated 9.12.2000 (Annexure A-9) and 4.6.2001 (Annexure A-11) are quashed and set aside with all consequential benefits. The applicant shall be reinstated immediately but in the facts and circumstances of the case, he will not be entitled to at backwages, The respondents are directed to carry out the above directions expeditiously and in any case within a period of 3 months from the date of receipt of this order. No costs.