Ashok Bhushan, J.— Leave granted. This appeal has been filed by the H.P State Electricity Board, questioning the judgment of the Division Bench of the Himachal Pradesh High Court dated 9-4-2015 in Himachal Pradesh State Electricity Board v. Mahesh Dahiya. The letters patent appeal was filed by the appellant against the judgment and order of the learned Single Judge dated 9-4-2012 in Mahesh Dahiya v. Himachal Pradesh State Electricity Board by which judgment the writ petition filed by the respondent challenging the order of punishment of compulsory retirement as well as order of the appellate authority, dismissing the appeal were set aside with direction to reinstate the writ petitioner forthwith with all consequential benefits. The 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.
2. The brief facts necessary for deciding this appeal are: the appellant shall be referred to hereinafter as “the 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 Assistant Executive Engineer in 1989. He was sent on deputation to Rural Electrification Corporation of India and posted at Delhi. In the year 2005, the writ petitioner was repatriated and posted at the H.P State Electricity Board, Shimla as Senior Executive Engineer. After repatriation, he remained on leave for 103 days. On 4-6-2005, the writ petitioner was admitted in IGMC Hospital, Shimla from where he was discharged on 16-6-2005. The writ petitioner obtained fitness certificate on 23-7-2005 from IGMC Hospital and joined his duties on 25-7-2005. After joining, he submitted leave application up to 23-7-2005 for post facto sanction which was granted.
3. On 30-7-2005, the writ petitioner submitted a leave application on medical ground with permission to leave station. Without awaiting for sanction of the leave, the writ petitioner left the station. With reference to leave application dated 30-7-2005 submitted by the writ petitioner, he was advised vide letter dated 25-8-2005 of the Chief Engineer to appear before the Medical Board. The Chief Medical Officer, DDU Hospital, Shimla was requested to constitute a Medical Board to examine and confirm about the illness. The 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 the writ petitioner, telegrams were further sent on 7-9-2005, 30-9-2005 and 21-10-2005, asking the writ petitioner to appear before the Medical Board. On 30-9-2005, the writ petitioner was also given warning that disobedience will invite the disciplinary action. Lastly, on 2-12-2005, the writ petitioner was again directed to appear before the Medical Board, Shimla otherwise disciplinary action will be initiated and the matter has been viewed seriously by the Board authorities. The writ petitioner did not appear before the Board, and consequently, he was placed under suspension by order dated 21-1-2006. The writ petitioner obtained a medical-cum-fitness certificate from Rohtak and he visited IGMC, Shimla on 18-2-2006 for obtaining a medical certificate. IGMC, Shimla issued a medical certificate on 18-2-2006. The joining report dated 20-2-2006 was submitted before the Superintending Engineer (Op.) Circle, Hpseb. The writ petitioner on 27-2-2006 submitted a representation for revocation of his suspension.
4. The Board decided to hold a disciplinary proceeding against the writ petitioner under Rule 14 of the CCS (CCA) Rules, 1965 (hereinafter referred to as “the Rules”). A memo and article of charge dated 21-9-2006 was served on the writ petitioner. The writ petitioner submitted a reply to the charges on 15-10-2006. An inquiry officer was appointed by the 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.) (PW 1) and Shri Brij Lal Kiashta, Section Officer (PW 2). The 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 enquiry report dated 29-12-2007. The 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 levelled against Er. Dahiya stands proved that he has wilfully absented himself from official duties and has disobeyed the directions of his superiors.
Charge 1 — Proved.”
5. The disciplinary authority-cum-whole-time members of the Board considered the enquiry report on 25-2-2008 and took the following decision:
“The findings of the enquiry report were accepted by the WTM and it was decided to award major penalty of removal from service after following proper codal formalities.”
6. By the letter dated 2-4-2008, a copy of the enquiry report was forwarded to the writ petitioner, asking him to submit his representation within fifteen days. The writ petitioner submitted a reply dated 15-4-2008. Apart from other pleas, it was also stated that the writ petitioner had been supplied the decision of the whole-time members of the Board where findings of the enquiry report have been accepted and it was decided to award major penalty of removal from service. The disciplinary authority considered his explanation dated 15-4-2008 and came to the opinion that charges against the writ petitioner are proved, and a penalty of removal be imposed. However, before imposing the penalty an opportunity was provided to make a representation within fifteen days by order dated 6-7-2009. The writ petitioner submitted a representation on 21-7-2009. The disciplinary authority passed an order dated 21-8-2009. The disciplinary authority considered the representation dated 21-7-2009 and took a decision to compulsorily retire the writ petitioner and his period of absence was to be treated as dies non.
7. Against the order communicated vide order dated 25-8-2009, the writ petitioner filed an appeal on 9-9-2009 which appeal was dismissed by the appellate authority vide its order dated 10-12-2009. Aggrieved by the orders dated 25-8-2009 and 9-9-2009, the writ petitioner filed the writ petition before learned Single Judge which writ petition had been allowed by the Single Judge by the order dated 9-4-2012 2012 SCC OnLine HP 1898. Challenging the said judgment letters patent appeal was filed which too has been dismissed. The Division Bench, while dismissing the appeal came to the conclusion that the inquiry officer and the disciplinary authority have violated the principle of natural justice, hence, the appeal deserved to be dismissed. The appellate court had further observed that the inquiry officer, while submitting his report has not discussed the statement of the defence witnesses who supported the case of the writ petitioner.
8. The learned Single Judge and the Division Bench both came to the conclusion that copy of the enquiry report was supplied to the writ petitioner on 2-4-2008 whereas the disciplinary authority-cum-whole-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 enquiry report which has prejudiced the writ petitioner. The learned Single Judge has also held that the disciplinary authority failed to prove that absence from the duty was wilful nor have any such findings been recorded by the inquiry officer, whereas, the writ petitioner has submitted the medical certificate to prove that he was suffering from tuberculosis (TB). The learned Single Judge had also issued notice to Dr Sharma of Rohtak who had issued the certificate to the writ petitioner who appeared before the learned Single Judge and proved his certificate.
9. This Court issued notice on 31-8-2015 SLP (C) CC No. 15656 of 2015 and has also stayed operation of the judgment dated 9-4-2015 2015 SCC OnLine HP 818.
10. The learned counsel for the appellant in support of the appeal contends that article of charge against the writ petitioner consisted of two parts of charge i.e (i) wilful abstention from official duty, and (ii) disobeying the directions of the superiors. He submitted that even if it is assumed for argument's sake that the 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 the writ petitioner submitted an application on 30-7-2005 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 having been sanctioned and in spite of the written orders from the Chief Engineer dated 25-8-2005, 7-9-2005, 30-9-2005, 21-10-2005 and 2-12-2005 failed to appear before the Medical Board, disobeying the orders.
11. The learned counsel submitted that the charge regarding disobedience of orders of the superiors having been proved in the inquiry, there is no error in the punishment awarded on the writ petitioner. He submitted that entire proceedings before the inquiry officer and the disciplinary authority were conducted in accordance with the principle of natural justice. A copy of the enquiry report was duly served to the writ petitioner and he was given opportunity to represent against the enquiry report. He submitted that the misconduct on behalf of such senior officer cannot be condoned and both the courts below committed error in setting aside the orders of punishment and directing the reinstatement with all consequential benefits.
12. The learned counsel for the respondent submitted that there being ample material on record to indicate that the writ petitioner was suffering from tuberculosis, his absence from duty cannot be said to be wilful and such absence is not misconduct on which punishment can be awarded. He further submitted that the writ petitioner could not appear before the Medical Board due to his continued illness, which cannot be taken as factor against the writ petitioner. He submitted that there was violation of principles of natural justice in the proceeding as has been by the courts below. Present is not the case in which this Court may interfere with the judgment of the High Court.
13. We have considered the submissions of the learned counsel for the parties and perused the records.
14. The Division Bench after referring to several judgments of this Court, which we shall notice hereinafter recorded its conclusion in paras 33, 34, 36 and 37 which are to the following effect: (Mahesh Dahiya case 2015 SCC OnLine HP 818, SCC OnLine HP)
“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 respondent-appellant.
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 petitioner-respondent herein from service and to throw him out, even without hearing him. Meaning thereby prejudice has been caused to the writ petitioner-respondent herein.
***
36. Applying the test to the instant case, one comes to an inescapable conclusion that the inquiry officer and the 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 2012 SCC OnLine HP 1898 is upheld for the reasons recorded hereinabove. Pending applications, if any, are also disposed of.”
15. The learned Single Judge heavily relied on the fact that the copy of the enquiry report was sent along with the letter dated 2-4-2008, whereas the disciplinary authority-cum-whole-time members had already made up their mind to impose a major penalty. It shall be useful to refer to the following observations of the learned Single Judge made in paras 18 and 19: (Mahesh Dahiya case 2015 SCC OnLine HP 818, SCC OnLine HP)
“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 respondent-appellant herein specifically, thus, admitted. It stands corroborated and proved by the statement of Dr Brij Sharma. Abovesaid facts read with order, dated 3-1-2011, passed by the learned Single Judge are factors leading to the conclusion that the absence of the writ petitioner was not deliberate or wilful, but was beyond his control.
19. The writ petitioner has filed rejoinder and has explained all circumstances which have been taken as grounds by the appellant-writ respondent in the reply for conducting the inquiry and imposing the penalty upon the writ petitioner-respondent.”
16. The charge against the writ petitioner as framed was to the following effect:
“That the said Er. Mahesh Dahiya while functioning as Sr. Executive Engineer [Elect.] in the office of the Chief Engineer [Comm.], Hpseb, Shimla 4 during the period from 2005-2006 proceeded on leave on 30-7-2005 on medical ground. Er. Dahiya was repeatedly directed vide Chief Engineer [Comm.] Hpseb, Shimla 4 letters dated 25-8-2005, 7-9-2005, 26-10-2005 and 2-12-2005 to appear before the Medical Board but the respondent failed to do so. Thus, Er. Dahiya has wilfully absented himself from official duties and has disobeyed the directions of his superiors. The 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 Rules 3(1)(i), (ii) and (iii) of the CCS Conduct Rules, 1964 and which made him liable for disciplinary action under Rule 14 of the CCS (CCA) Rules, 1965.”
17. 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 30-7-2005 for grant of medical leave with permission to leave the station. According to Rule 7 of the Central Civil Services (Leave) Rules, 1972 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 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.”
18. It has also come on record that application for leave on medical ground dated 30-7-2005 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 have been submitted after 20-2-2006, 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 30-7-2005. The sequence of events indicates that first letter was written by the Chief Engineer directing the writ petitioner to appear before the Medical Board on 25-8-2005 and thereafter there have been repeated telegrams and directions to appear before the Medical Board and warning was also issued on 30-9-2005 that disobedience will invite disciplinary action.
19. The charges, which have been levelled against the writ petitioner were in two parts, as noted above i.e wilful absence from duties and disobedience of the orders of the superiors. The learned counsel for the appellant confined his submission only to the second charge, that is, wilful disobedience of the superior officers. He submitted that, even if, on account of illness of the writ petitioner, his absence is not treated as wilful, the second part of the charge is fully proved in the inquiry. During the inquiry, the 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.
20. As noted above, the Division Bench in paras 31 to 33 has come to the conclusion that the inquiry officer has not discussed the evidence of the defence witnesses. The report of the inquiry officer has been brought on record as Annexure P-7, only one defence witness appeared, namely, Engineer P.C Sardana. In the enquiry 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.”
21. Having noticed by the inquiry officer the statement of the defence witness, the Division Bench was not correct in its conclusion that defence was not considered. The inquiry officer in his report has extracted entire statement of Er. P.C Sardana. The defence witness has only stated that 30th July was his last day in the office on which date the writ petitioner has expressed his inability to attend farewell 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 to making leave application on 30-7-2005. We, thus, do not find any infirmity in the inquiry officer's report in respect to consideration of evidence of the defence witness Er. P.C Sardana.
22. The Division Bench further in para 36, as noted above has come to the conclusion that the 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 of the learned Single Judge that how the principle of natural justice have been violated by the inquiry officer. Before the inquiry officer, both the 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.
23. The basis of coming to the conclusion by both the 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 enquiry report was sent to the writ petitioner by the letter dated 2-4-2008, the disciplinary authority-cum-whole-time members have already come to the opinion on 25-2-2008 that the writ petitioner be punished with major penalty. The Division Bench of the High Court has placed reliance on Union of India v. R.P Singh (2014) 7 SCC 340.
24. In the above case the issue was as to whether non-supply of the copy of advice of UPSC to the delinquent officer at pre-decision stage violates the principle of natural justice. This Court placed reliance on the Constitution Bench judgment in ECIL v. B. Karunakar (1993) 4 SCC 727 and laid down the following in para 21: (R.P Singh case (2014) 7 SCC 340)“21
. At this juncture, we would like to give our reasons for our respectful concurrence with S.K Kapoor (2011) 4 SCC 589. 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 T.V Patel case (2007) 4 SCC 785, 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 enquiry 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 precisely what has been laid down in B. Karunakar case (1993) 4 SCC 727. We may reproduce the relevant passage with profit: (B. Karunakar case (1993) 4 SCC 727)‘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 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 proposition.
25. The Constitution Bench in ECIL v. B. Karunakar (1993) 4 SCC 727 after elaborately considering the principle of natural justice in the context of the disciplinary inquiry laid down the following in paras 29, 30(iv) and (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 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.
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 (1991) 1 SCC 588 should apply to employees in all establishments whether Government or non-government, 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.
(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 service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing 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 back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.”
26. Present is not a case of not serving the enquiry report before awarding the punishment rather the complaint has been made that before sending the enquiry report to the delinquent officer, the disciplinary authority has already made up its mind to accept the findings of the enquiry report and decided to award punishment of dismissal. Both the learned Single Judge and the Division Bench on the aforesaid premise came to the conclusion that the principle of natural justice has 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 non-supply of the report. Following observations have been made in the impugned judgment 2015 SCC OnLine HP 818 by the Division Bench in para 21: (Mahesh Dahiya case 2015 SCC OnLine HP 818, SCC OnLine HP)
“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 non-supply of enquiry report, findings and other material relied upon by the inquiry officer/disciplinary authority to the writ petitioner-respondent herein to explain the circumstances, which were made basis for making foundation of enquiry 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 wilfully and he has disobeyed the directions?”
27. The above observation clearly indicates that the 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 v. Union of India (2012) 3 SCC 178 wherein 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 wilful. The 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 was wilful or not.
28. As noted above, the Division Bench having posed the question as to whether inquiry is to be quashed from the stage where the disciplinary authority committed fault i.e from Rule 15, has not further dwelt upon the question nor has given any reason as to why the opportunity for holding the inquiry from the stage fault was found be not given.
29. On the scope of judicial review, the Division Bench itself has referred to the judgment of this Court in M.V Bijlani v. Union of India (2006) 5 SCC 88. This Court, noticing the scope of judicial review in the context of disciplinary proceeding made the following observations in para 25:
“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration 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.”
30. The three-Judge Bench of this Court in B.C Chaturvedi v. Union of India (1995) 6 SCC 749 had noticed the scope of judicial review 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 the 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 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 . AIR 1964 SC 364 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 be issued.”
31. Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by the letter dated 2-4-2008 the disciplinary authority-cum-whole-time members have already formed an opinion on 25-2-2008 to punish the writ petitioner with major penalty which is a clear violation of the principles 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 to be given an opportunity to submit the representation/reply on the enquiry report which finds a charge proved against the delinquent. The opinion formed by the disciplinary authority-cum-whole-time members on 25-2-2008 was formed without there being benefit of comments of the writ petitioner on the enquiry report. The writ petitioner in his representation to the enquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the disciplinary authority before it embarks with further proceedings as per statutory rules. 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 enquiry report to the delinquent and before obtaining his comments on the enquiry 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.
32. 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 the Rules. We are conscious that sufficient time has elapsed during the pendency of the writ petition before the learned Single Judge, the Division Bench and before this Court, however, in view of the interim order passed by this Court dated 31-8-2015 SLP (C) CC No. 15656 of 2015 no further steps have been taken regarding implementation of the order of the High Court. The ends of justice would be served in disposing of this appeal by fixing a time-frame for completing the proceeding from the stage of Rule 15.
33. We having found that the principles of natural justice have been violated after submission of the enquiry 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 enquiry report in accordance with Rule 15(2) of the 1965 Rules and further proceedings, if any, are to be taken thereafter.
34. In the result, the appeal is partly allowed, the judgment of the High Court is modified in the following manner:
34.1 All proceedings of the disciplinary authority after submission of the enquiry report dated 29-12-2007 including punishment order dated 25-8-2009 and appellate order dated 10-12-2009 are set aside.
34.2 The disciplinary authority shall forward the enquiry report as per Rule 15(2) of the 1965 Rules. The writ petitioner be allowed 15 days' time to submit his representation to the enquiry report.
34.3 After receipt of representation of the writ petitioner to the enquiry report, the disciplinary authority may proceed and take a decision in accordance with Rule 15 of the 1965 Rules.
34.4 The disciplinary authority shall complete the proceedings and pass appropriate orders within a period of three months from the date of receipt of the representation of the writ petitioner to the enquiry report.
Comments