Allahabad High Court
Ramesh Kumar Maheshwari vs Central Institute Of Plastics ... on 23 April, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Case :- SERVICE BENCH No. - 1562 of 2014 Petitioner :- Ramesh Kumar Maheshwari Respondent :- Central Institute Of Plastics Engineering & Technology and others Counsel for Petitioner :- Praveen Kumar Counsel for Respondent :- Anurag Srivastava Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Shri Praveen Kumar, learned counsel for the petitioner and Shri Anurag Srivastava, learned counsel for the respondents.
2. The petitioner has instituted this writ petition against the respondents assailing the judgment and order dated 19.05.2014 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as, 'Tribunal') in Original Application (hereinafter referred to as, 'O.A.') No. 466 of 2010 (Ramesh Kumar Maheshwari Vs. Central Institute of Plastics Engineering and Technology (hereinafter referred to as, 'CIPET') through President of its Governing Council and others. In O.A. No. 466 of 2010 the petitioner has challenged, the punishment order dated 24.11.2003, by which his services has been terminated and the Appellate order dated 27.10.2009 passed by respondent No.2. This O.A. has been dismissed by the Tribunal vide impugned order dated 19.05.2014.
3. The petitioner has pleaded that he is a science graduate with a Post Graduate Diploma in Plastics Testing and Conversion Technology and was appointed by the CIPET-respondent No.1 at Lucknow as Technical Assistant (Testing) on 22.08.1989. Subsequently, he was appointed there as a Technician (Testing) on 08.08.1991 and was on training for one year. After successful completion of training, the petitioner was appointed as Technician (Testing) Group-II with effect from 14.08.1993, thereafter he was upgraded to Grade-I vide letter dated 16.02.2000.
4. It is mentioned that thereafter, petitioner was promoted as Senior Technical Assistant, and later on confirmed as such with effect from 01.06.2001 by an order of the Deputy Director, CIPET, Extension Centre, Lucknow. The petitioner was especially selected for specialized training in testing and was sent to United Kingdom in 1996. He has thus, attended further proficiency in testing of material system. The petitioner's work and conduct has always been of high order. This fact was later on acknowledged by the Centre Head, the Deputy Director, i.e., respondent No.4, while giving evidence in support of his own complaint against the petitioner.
5. It is further pleaded that the Testing Lab of the CIPET Centre, Lucknow, is accredited by the National Accreditation Board for Testing and Calibration Laboratories (in short, 'NABL'), Ministry of Science and Technology, Government of India and the petitioner being qualified, trained and specially trained in Testing was posted throughout only in Testing Lab of Lucknow Centre of the respondent No.1.
6. It is further contended that the testing laboratory and calibration laboratory are quite different and distinct in nature, work and specially in as much as while testing laboratory of NABL is headed by a Director in the department of science and technology in the Ministry of Science and Technology, Government of India and the calibration laboratory is under Head of Calibration Service Cell of National Physical Laboratory, a separate establishment.
7. The petitioner has also pleaded that while posted and working in the Testing Laboratory the petitioner was asked on 09.07. 2002 verbally by the Deputy Director, CIPET Center, Lucknow, the respondent No.4, to sit for some time in the department of calibration instead of department of testing in order to get acquainted with the procedure of Calibration system also. The petitioner, in due compliance of the said verbal order, started sitting in the department of calibration with immediate effect on the same day.
8. He has mentioned that on 05.08.2002, the petitioner, having fallen sick with the renal problem, which was later on, medically diagnosed as to be due to stone in kidney, was confined to bed with severe pain and hypertension and he was medically advised for regular treatment and complete rest. Necessary medical certificates, prescriptions, bills on treatment, pathological testes report were duly submitted by the petitioner and reimbursed by the CIPET, Lucknow.
9. It is further contended that while the CIPET Center, Lucknow, reimbursed the expenses towards medical treatment to the petitioner, thus, accepted the genuineness of his sickness and the authenticity of the expenses incurred by him on his treatment, the Deputy Director of CIPET Center, Lucknow, i.e., the respondent No.4, refused to sanction medical leave for the same period stating it to be on technical and administrative ground which were never disclosed to the petitioner.
10. The petitioner has also contended that there is no provision under any rules to refuse medical leave of an employee in the face of medical certificate, which stands accepted as genuine by reimbursing the treatment expenses based thereon. It is axiomatic that if the leave sanctioning authority has any doubt on the veracity of a medical certificates, he may refer the case to higher medical authority for second opinion and specialized examination of the employee but under no law, the sanctioning authority can refuse to give credence to a medical certificates without authority and opinion from any superior medical authority to the contrary.
11. It is mentioned that the petitioner's treatment and his certificates were accepted as genuine and expenses incurred thereon were reimbursed on one hand, whereas the same certificates were not accepted for the purpose of sanctioning leave. The petitioner is still in the dark to know the rationality of the said self contradicting actions of the Deputy Director, i.e., respondent No.4, in the matter, even after his representation and appeal at respective stages.
12. The petitioner has further pleaded that while the petitioner was confined to bed and under medical treatment, a letter of his posting to calibration department dated 06.08.2002 was dispatched to his residence through a courier service and delivered to the petitioner on 08.08.2002. This order was only in confirmation of the verbal order of the Deputy Director, CIPET Center, Lucknow, given to the petitioner one month back on 09.07.2002 and the said verbal order had already been complied with by the petitioner. The petitioner remained under medical treatment till 17.09.2002 and resumed his duties on 18.09.2002 in the department of Calibration as per direction of the Deputy Director, CIPET Center, Lucknow, i.e., the respondent No.1.
13. The petitioner has also pleaded that on 12.12.2002, the petitioner was served with a charge sheet dated 10.12.2002 signed by the Deputy Director, i.e., respondent No.3, containing imputations of meting out threats, high handedness, misbehavior, riotous conduct, etc., requiring the petitioner to submit his explanation thereto within the stipulated time.
Along with the charge sheet dated 10.12.2002, copies of the documents, on which the articles of charges were said to be based and which were enumerated in appendix II to charge sheet were not provided to the petitioner, therefore, he made a request on 19.12.2002 to the respondent No.3 to provide the same, but the same was not supplied.
The petitioner submitted his written statement of defense on 10.01.2003, denying specifically all the charges and requesting for personal hearing also.
14. It is further mentioned that on 31.01.2003, the petitioner was informed by the respondent No.3 that Shri K. Manmohan, Chief Manager, F& A, i.e., respondent No.5, then in CIPET Corporate Office, Chennai had been appointed Enquiry Officer and Shri K. K. Shashidharan, Senior Administrative Officer, then at CIPET, Bhopal, had been appointed as Presenting Officer.
15. It is further pleaded that the Inquiry Officer held inquiry on 21.02.2003, during the period from 24.03.2003 up to 27.03.2003 and from 19.05.2003 up to 21.05.2003 at the office of CIPET Extension Center, Lucknow. The Inquiry Officer, when found that charges framed against the petitioner could not be proved on the basis of the evidences cited in the charge sheet and produced before him, he contacted a retired Commissioner of Income Tax and some transporters. Not only this, it has also been said that the father of the petitioner has also been approached and on phone he admitted the visit of the petitioner at the residence of Deputy Director/ complainant. It is further mentioned that the Inquiry Officer could not be successful in his manipulation and irregular efforts of conducting investigation, he went on 21.05.2003 to the house of complainant, the Deputy Director, CIPET, Extension Center, Lucknow to contact his wife and got a statement from her, even though she had not been cited as a witness in the charge sheet. Her statement was not recorded at the designated place of the inquiry, but at the residence of respondent No.4, the complainant.
16. It is contended by the petitioner that no registration number of white ambassador car was mentioned by the complainant in his complaint dated 06.08.2002. The witness, Shri M. K. Sinha, introduced the registration number as U.P.78 S 0766 of the said white ambassador car, which on verification, was found to be the registration number of a LML scooter.
17. It is further pleaded that an unknown person, namely, Shri Jagdeep Yadav was produced as a management witness, who could not identify the petitioner, nor he could recollect that he carried, on the alleged date of incident, i.e., 05.08.2002, the petitioner along with two unknown persons in ambassador car No. U.P.78 S 0766 drove by him. The owner of car No. U.P.78 S 0766 adduces his evidence that the said car was hired by Shri Ram Lal, who was the Commissioner, Income Tax and that the aforesaid Jagdeep Yadav was not in his service. The Inquiry Officer contacted Income Tax Commissioner to make an inquiry at the back of petitioner without even disclosing the same to the petitioner. It is contended that once the story of visiting the place of the Deputy Director through the alleged vehicle has been disproved, the subsequent event could not be treated as to be proved.
18. It is mentioned that Inquiry Officer, after concluding inquiry, submitted his report dated 02.09.2003 before the respondent No.3. The petitioner, after receiving the copy of the inquiry report, submitted a representation to the Disciplinary Authority/ respondent No.3, in which petitioner pointed out specific instances of discrepancies in the inquiry report and illegal procedure adopted by the inquiring authority. The Disciplinary Authority passed punishment order dated 24.11.2003, terminating the services of petitioner without considering his representation dated 02.11.2003.
19. It is further contended that on 07.01.2004, petitioner preferred an appeal before the respondent No.2, which was dismissed vide order dated 08.03.2004. The petitioner preferred a review application against the said order, but it was also rejected by the appellate authority. Feeling aggrieved against the same, the petitioner approached this Court by filing a Writ Petition No. 1193 (SS) of 2005, which was partly allowed by this Court vide judgment and order dated 12.06.2009 quashing the order passed by the appellate authority and reviewing authority, while observing that appellate authority as well as reviewing authority both have failed to consider the effect of the objection filed by petitioner against the report submitted by the Inquiry Officer. The matter was remitted back to the appellate authority to reconsider the appeal submitted by the petitioner after affording opportunity to the petitioner.
20. The petitioner further pleaded that on 27.06.2009 he submitted the certified copy of judgment and order dated 12.06.2009 passed by this Court. It is further alleged by the petitioner that in violation of judgment dated 12.06.2009, he was directed to present his appeal in writing on 05.08.2009 at 11:00 a.m. Copy of appeal was sent by the petitioner on 01.08.2009 by speed post and he appeared on 05.08.2009 before the appellate authority at Chennai. It is mentioned that appellate authority vide order dated 27.10.2009 dismissed the appeal of petitioner without considering the grounds taken by the petitioner in his appeal of illegality, violation of rules, irregularities raised by the petitioner in violation of order passed by this Court. The copy of the impugned appellate order passed by the appellate authority was served on 03.11.2010 on the petitioner.
21. It is further mentioned that the Director General has circumvented the direction of this Court by disposing of the matter extraneously introducing issues and without going in to still undecided points of objections and grounds of the petitioner's appeal raised in his representation and memorandum of appeal. The Director General, i.e., the respondent No.2, has acted arbitrarily and autocratically without caring to consider the whole gamut of the matter objectively, therefore, the impugned order suffers from infirmity, illegality and official bias.
22. The petitioner has further contended that the Tribunal delivered the impugned judgment and order dated 19.05.2014 without considering the contentions of the petitioner regarding the fact that the complainant was the Deputy Director, whereas the Inquiry Officer nominated was a subordinate officer and was posted as Chief Manager, F&A at Chennai, therefore, fair inquiry was not conducted by the Inquiry Officer. The Tribunal has also not considered the fact about the registration number of white ambassador car by which the petitioner allegedly went at the resident of complainant on the date of incident.
23. It is further pleaded that from perusal of the judgment dated 19.05.2014, it is clear that instead of examining the illegality and irregularity in the proceedings, the learned Tribunal gave weightage to the charges leveled against the petitioner, while dismissing the OA, which let to issue of an erroneous judgment.
24. It is further contended on behalf of petitioner that by means of the impugned order dated 24.11.2003 the Disciplinary Authority has awarded the punishment of termination from service to the petitioner, which is not provided under the provisions of CIPET Discipline and Conduct Rules. In the circumstances, the punishment imposed on the petitioner is against the rules, which are applicable in the case of the applicant, therefore, judgment dated 19.05.2014 is not sustainable in the eye of law as well as on facts, therefore, it is liable to be set aside.
25. On the above mentioned grounds, the following reliefs has been sought by the petitioner:
" 1. To issue a Writ, order or direction in the nature of Certiorari quashing the judgment and Order dated 19.05.214 passed in O.A. No. 466 of 2010; Ramesh Kumar Maheshwari versus CIPET & others, contained as Annexure no.1 to this Writ Petition with other consequential orders if any, with all consequential benefits.
2. To issue a Writ, order or direction in the nature of Certiorari quashing the impugned termination order dated 24.11.2003 and Appellate order dated 27.10.2009, contained as Annexure No.2 & 3 to this Writ Petition, with all consequential benefits.
3. To issue a Writ, order or direction in the nature of mandamus to reinstate the petitioner with all consequential benefits of pay and allowances etc.
4. To issue a Writ, order or direction of any other nature meeting the end of justice which this Hon'ble Court may deem fit just and proper under the attending facts and circumstances of the case.
5. To allow the present Writ Petition with cost."
26. The respondent Nos. 1 to 4 has filed counter affidavit, wherein it is pleaded that Lucknow Centre of CIPET is a plastic, testing and calibration lab (for short 'PTCL'). It has been accredited by National Accreditation Board of Testing and Calibration Laboratories (NABL), an apex body created by Ministry of Science and Technology in India. The centre has to provide highest possible level of testing and calibration services to all its customers at all times. The organizational structure as per the norms of NABL shows that testing and calibration are integral part of a single department. Testing encompasses the measurement/ checking of any machine, material, product or parameter against specified requirements or standards. Calibration is the process of standardization of the test and termination of the error in the measurement better known as 'uncertainty in measurement'.
27. It is further submitted that in the normal course, while conducting the tests of plastic material or product, it is the duty of person who is carrying out the test to ensure that measurement is performed on a calibrated machine so that the results are repeatable and accurate. Even the final results of the tests have to be checked, tested and the uncertainty in measurement determined as per the relevant standards. As per the National Accreditation Board of Testing and Calibration Laboratories (NABL), Department of Science and Technology, Government of India, all such measurements shall be calibrated and the uncertainty in measurement be recorded. Thus, calibration is an integral part of testing.
28. It is also submitted that as per the directives of the Director General of CIPET calibration activities needed to be increased and made more broad based, more personnel were required in the Calibration Laboratory of PTCL. It was clearly indicated that the qualification of the staff should be at least diploma in engineering or Degree in Physics or equivalent in the relevant field with at least three years experience. Therefore, in the high powered Management Review Committee meeting held on 02.07.2002 it was decided to shift one senior level non supervisory staff from the testing laboratory to calibration laboratory of PTCL. The review committee further found that the petitioner was the only person from amongst the available staff, who had degree in Physics and met the pre-requisite of NABL for working in the calibration branch. Thus, the review committee decided to post the petitioner to calibration branch of PTCL. As such, exigency of service required the petitioner to work in the calibration branch of PTCL.
29. It is also mentioned that the Testing Laboratory of the CIPET is also a Nodal agency for certifying the quality of plastic products and to decide, what ISI mark in the industry is for other products CIPET mark is necessary for plastic products. It is also mandatory to obtain certificate from the Testing Laboratory of CIPET for making all supplies of plastic products to the government.
30. It is further pleaded in counter affidavit the petitioner who was holding a very senior position in the testing laboratory and was even authorized to issue the certificates to agencies supplying plastic products to government contracts, was not happy with the transfer from testing to calibration and then he tried to get the order cancelled by threatening the then Deputy Director of the Institute along with other unknown persons. When he failed in pressurizing the Deputy Director in getting the order cancelled, he challenged the order of transfer in this Court by filing Writ Petition No. 4932 (SS) of 2002. This Court declined to interfere with the transfer order as the order indicated that the transfer had been done by the committee after considering the need of the department. It was however, observed that in case the petitioner had a diploma in testing, the respondents may consider posting him back to his parent department at suitable time and the writ petition was dismissed vide order dated 11.09.2002.
31. It is mentioned that the petitioner was not satisfied by the judgment of the learned Single Judge, therefore, he preferred Special Appeal No. 343 of 2002 but in the appeal also no interim orders were passed.
32. It is further contended that petitioner was on earned leave, but he applied for cancellation of sanctioned earned leave for the period between 05.08.2002 to 14.08.2002 vide his application dated 02.08.2002. The 3rd and 4th being holidays, he was supposed to report for duty on the 5th of August, 2002, but he did not do so. The petitioner in the night of 05.08.2002 went to the residence of respondent No.4 and misbehaved, threatened and pressurized him to cancel the transfer order. Thereafter, on 06.08.2002, he came to the Institute and again forcibly tried to occupy his previous place of posting and work on the same. But on his failure to do so, he again threatened the respondent No.4 and then left the Institute by giving an application on medical grounds without any supporting certificate of the doctor which is essential for medical leave. It is however clarified that sanctioning medical leave and reimbursement of medical expenses are two different things. A person can undergo medical treatment and claim reimbursement without going on medical leave. This was a case where petitioner have undergone treatment for stone in kidney, but his conduct was such which proved that he did not require leave for medical treatment. As such, his medical bills were reimbursed, but his medical leave for the specific period was not sanctioned.
33. It is further mentioned that the Disciplinary Authority furnished the copy of inquiry report to the petitioner requiring him to make his submissions and after receiving the representation of the petitioner and after considering all the aspects of the matter, terminated the services of the petitioner by means of the order dated 24.11.2003.
34. It is further contended in the counter affidavit by the contesting respondents that the Inquiry Officer, during the course of inquiry, found that the petitioner visited the official residence of complainant along with two outsiders and committed incidents, as per the charges framed against him and mentioned in the charge sheet. The Inquiry Officer, after conclusion of inquiry, submitted his report dated 02.09.2003 to the Disciplinary Authority. The Disciplinary Authority passed the punishment order dated 24.11.2003, terminating the services of the petitioner after considering his representation dated 02.11.2003.
35. It is further submitted by the respondents that Writ Petition No. 1193 (SS) of 2005 filed by petitioner was partly allowed by this Court vide judgment and order dated 12.06.2009 and the appeal of the petitioner was revived. The Appellate Authority, fixed the date 05.08.2009 for hearing of appeal of the petitioner. He was given full opportunity of personal hearing and was heard by the Appellate Authority on all the points raised in his appeal. The appeal preferred by petitioner was dismissed vide order dated 27.10.2009 considering the petitioner's objections filed against the inquiry report.
36. It is further pleaded that learned Tribunal took into consideration the entire proceedings conducted by the authorities and the various judgments cited in support of the arguments and thereafter reached to a conclusion that there is no justified reason to interfere in the original application. It is mentioned that there is inordinate delay in filing this writ petition against the judgment and order, which was not satisfactorily explained and as such the writ petition suffers from laches and is liable to be dismissed on this ground alone.
37. It is further submitted that the grounds taken in the writ petition are not tenable under law and the writ petition is liable to be dismissed with heavy costs.
38. The petitioner has filed rejoinder affidavit reiterating his earlier contentions. He has also mentioned in the rejoinder affidavit that he approached this Court by filing Writ Petition No. 4932 (SS) of 2002, which was decided with some observations. Against the said order dated 11.09.2002, the petitioner preferred a Special Appeal No. 343 of 2002. However, in compliance of the order dated 11.09.2002, the petitioner submitted a representation before the competent authority, but no orders as required by this Court, has been passed by the respondents till date, instead they cooked up a case feeling annoyed with the petitioner on account of filing of writ petition.
39. We have perused the record and order dated 12.06.2009 passed by this Court in Writ Petition No. 1193 (SS) of 2005, The operative portion of which reads as under:
"I have carefully gone through the enquiry report, the representation submitted by the petitioner against the enquiry report and the dismissal order passed by the Disciplinary Authority and I am constrained to observe that the petitioner had challenged the correctness of the findings recorded by the enquiry officer in his report on several grounds and the petitioner before the Appellate Authority had categorically urged that the Disciplinary Authority had totally failed to consider the grounds mentioned in the petitioner's representation on which he had challenged the correctness of the findings recorded in the enquiry report which had totally vitiated the order of the Disciplinary Authority. However, a perusal of the appellate order as well as the order passed on review application demonstrates that the Appellate Authority as well as the Reviewing Authority have failed to examine the effect of the failure of the Disciplinary Authority to consider the petitioner's objections filed by him against the report of the Enquiring Authority on the entire proceedings.
It is clear from the order of the Appellate Authority that he was not applied his mind to the facts and arguments and in a most cursory manner he has dismissed the appeal. The order rejecting the petitioner's review petition also suffers from the same infirmity.
As the orders of the Appellate Authority as well as the Reviewing Authority have been found to be faulty for the reasons indicated hereinabove this Court does not propose to go into the merits of the various submissions advanced by the learned counsel for the petitioner on the basis of which he has tried to demonstrate that the order passed by the Disciplinary Authority is liable to be set aside as it is the function of the Appellate Authority and the Reviewing Authority first to deal with the same and record reasons and finding upon which it is to be judged by this Court.
For the aforesaid reason, the writ petition is partly allowed. The order dated 08.03.2004 (Annexure No.3 to the writ petition) passed by the opposite party No.2 and the order dated 25.06.2004 (Annexure No.4 to the writ petition) passed by the opposite party No.4 are hereby quashed. The matter is remitted back to the Appellate Authority/ opposite party No.2 with a direction that the petitioner's appeal stands revived and it shall be decided afresh in accordance with law after affording opportunity to the petitioner and in the light of the observations made hereinabove preferably within a period of two months from the date of production of certified copy of this order."
40. Therefore, on perusal of judgment and order dated 12.06.2009 it reveals that this Court has partly allowed the above mentioned writ petition and the order dated 08.03.2004 passed by the respondent No.2 and the order dated 25.06.2004 passed by respondent No.4 were quashed and the matter was remitted back to the Appellate Authority, i.e., respondent No.2 with a direction that the petitioner's appeal stands revived and it shall be decided afresh in accordance with law after affording opportunity to the petitioner and in the light of observations made hereinabove preferably within two months from the date of certified copy of this order.
41. This Court has specifically mentioned in the judgment dated 12.06.2009 that this Court does not propose to go into the merits of various submissions advanced by the learned counsel for the petitioner, on the basis of which he tried to demonstrate that the order passed by the Disciplinary Authority is liable to be set aside as it is the function of the Appellate Authority and the Reviewing Authority first to deal with the same and record reasons and findings upon which it is to be judged by this Court. Therefore, this Court without disturbing the punishment order dated 08.03.2004 passed by respondent No.2 and the order passed on review application were only set aside and matter was remanded back to the Appellate Authority for consideration of appeal preferred by the petitioner afresh.
42. There is no substance in the argument of learned Counsel for petitioner that since order of punishment merged in order passed by Appellate Authority and Reviewing Authority and these orders were set aside by this Court and direction was given to Appellate Authority for reconsideration, therefore, punishment order could not revived.
43. Learned counsel for petitioner has relied upon Annexure-C.A1 of counter affidavit, which is judgment dated 11.09.2002 passed by this Court in Writ Petition No. 4932 (SS) of 2002 (Ramesh Kumar Maheshwari Vs. Central Institute of Plastic Engineering and Technology and others) and argued that this writ petition was instituted by the petitioner assailing his transfer order dated 05.08.2002(correct date 06.08.2002) by which petitioner was transferred from testing section to calibration section. Although this writ petition was dismissed by this Court, but an observation was made by this Court as under:
"I have heard Sri SP Singh, counsel for petitioner and Sri Anugag Srivastava, counsel for respondent. According to the petitioner he has a diploma in Plastics Testing and he does not know the work of calibration. The order indicates that the transfer has been done by the committee after considering the need of the department. In view of this I see no justification to interfere. However, in case the petitioner has a diploma in testing the respondents may consider posting the petitioner back to his parent department at suitable time.
With these observations the writ petition is dismissed."
44. Learned counsel for respondent Nos. 1 to 4 has pointed out that it is specifically pleaded in para-8 of the counter affidavit that petitioner was not satisfied by the judgment dated 11.09.2002 passed by the learned Single Judge and he preferred Special Appeal No. 343 of 2002, but in this appeal no interim orders were passed by this Court. The petitioner has suppressed these facts in this writ petition and has not provided orders/ final order passed in Special Appeal No. 343 of 2002, therefore, no benefit can be extended to the petitioner on the basis of judgment dated 11.09.2002. There is substance in this argument put forth by learned Counsel for respondent Nos.1 to 4.
45. Learned Counsel for the petitioner has further argued that in reply to charge-sheet petitioner had specifically mentioned that he requested the complainant Dr. Vijay Kmar verbally so many times to transfer him in the testing lab, because he was not aware of working of Calibration Lab. He does not have technical knowledge of work of Calibration Lab, even then for harassing him the compliant transferred him from testing lab in the calibration lab. It is further submitted that this Court vide order dated 11.09.2002 passed in Writ Petition No. 4932 (S/S) of 2002 had observed that however, in case the petitioner has a diploma in testing the respondents may consider posting the petitioner back to its parent department at suitable time.
46. We have perused order dated 11.09.2002 passed by this Court by which writ petition was dismissed with following observations:
"The order indicates that the transfer has been done by the Committee after considering the need of the department. In view of this I see no justification to interfere."
47. In counter affidavit at para 4, it has been specifically contended by respondents that the Central Institute for Plastic Engineering and Technology Lucknow has to provide highest possible level of testing and calibration services to all its customers at all times. The orgainizational structure as per the Norms of NABL shows that testing and calibration are integral part of a single department. Testing encompassed the measurement/checking of any machine, material, product or parameter against specified requirements or standards. Calibration is the process of standardization of the test and termination of the error in the measurement better known as "uncertainty in measurement".
48. It is relevant to mention here that the petitioner being employee of this institute is responsible and obliged to obey transfer orders, as transfer was made by the complainant for smooth working and administrative exigency of the department of the testing and calibration lab. Transfer is the service condition of each employee. The employee cannot get any enforcible right in his favour by the action on his transfer from one department to another department.
49. There is no substance in the contention of the petitioner that he does not have technical knowledge of calibration lab and he is unknown to the field of calibration lab, because as per contention mentioned in counter affidavit work of testing lab and calibration is inter linked and in the high powered Management Review Committee meeting held on 02.07.2002 it was suggested to shift one senior level non supervisory staff from the testing laboratory to calibration laboratory of PTCL. The review committee further found that the petitioner was the only person from amongst the available staff, who had degree in Physics and met the pre-requisite of NABL for working in the calibration branch.
As such, exigency of service required the petitioner to work in the calibration branch of PTCL. The petitioner was holding very senior position in the testing laboratory and even authorized to issue certificates to agencies supplying plastic products to the government contracts. In these circumstances, the petitioner was transferred by the complainant from testing laboratory to the calibration laboratory.
50. The petitioner was obliged to meet the exigency of service in the calibration lab being the senior most officer of the testing lab, who was possessing degree in Physics. No other employee was available equivalent his senior position, who could supervise the work of calibration lab.
51. Learned Counsel for the petitioner has mentioned in rejoinder affidavit that order dated 11.09.2002 passed in Writ Petition No. 4932 (S/S) of 2002 was challenged in Special Appeal No. 343 of 2002 preferred on 16.12.2002 by the petitioner. In the meanwhile on 10.12.2002 charge-sheet was issued against the petitioner by the respondents, hence the petitioner was disturbed due to departmental proceeding, which created great hindrance in making the pairvi of Special Appeal.
52. There is no substance in the arguments put forth by learned Counsel for the petitioner in this regard.
53. We have also perused the charge sheet and memorandum order dated 10.12.2002. The Deputy Director Calibration/ Disciplinary Authority vide order dated 10.12.2002 initiated inquiry against the petitioner and the charge sheet with the following charges was served on the petitioner:
I. That the said Shri R. K. Maheshwari while functioning as Sr. Tech. Asst. at CIPET Lucknow, he along with two unknown persons in a white Ambassador Car went to the residence of Dr. Vijay Kumar, Dy. Director, at H-II-54, Sector D, LDA Colony, Kanpur Road, Lucknow on 05.08.02 at about 9:00 p.m. and demanded for cancellation of oral orders dated 09.07.02 by which he was directed to work at Calibration lab effected from 10.07.02 instead of Testing Lab. He further demanded that he shall be allowed to work in Testing Lab in the same position and nature of duty/responsibility that he was doing earlier in Testing Lab, or otherwise Dr. Vijaikumar and his family had to face dire consequences.
II. That said Shri R. K. Maheshwari alongwith two unknown persons on 05.08.02 about 9:00 p.m. entered the residence of Dr. Vijaikumar, Dy. Director, CIPET Lucknow and threatened to cancel the transfer order "failing which he and his family members will face serious consequences and he further informed that on 6th August 2002 he will be shifting his seating arrangement from calibration lab to the testing lab at the same place where he was sitting in the testing lab earlier and he will do the same work what he was doing earlier in the lab and he will see that no body can stop from doing so." The above act of threatening the Deputy Director and his family members and disobeying official orders of his superiors shows his willful insubordination.
III. That said Shri R. K. Maheshwari on 6th August 2002 came to the Institute premises at about 8.55 p.m. and entered into the testing lab unauthorizedly and ordered the available junior staff without any authorization and authority asked them to help in making his sitting arrangement in the testing lab. He behaved rudely with the instruments and equipments of the testing lab and changed their location and place in the lab with the help of junior staff to make room for his sitting at the same previous place. The same was objected by the Sr. Tech. Officer and later on he went to the office room of the Deputy Director and he reminded him of the threat of dire consequences to Deputy Director and his family and asked him to immediately release order to allow his working in the testing lab. By doing the above abusive acts and subversive of discipline, he disturbed the peace at the place of his employment.
IV. That the said Shri R K Maheshwari initially vide request letter 02.08.2002 for the E.L., sanctioned from 5th to 14th August 2002 cancelled but did not report for his duty in the Institute from 5th August 2002. Whereas in the night of 5th August 2002 along with two unknown persons gave threatening of dire consequences to Dy. Director and his family at his residence and subsequently he reminded the Dy. Director of the same threat in his office room of the Institute in the morning of 6th August 2002 thereafter, for extracting order of his working in the testing lab. On failure in managing the desired order, he left the Institute premises at 1030 a.m. by submitting an application stating that he is ill since 5.8.2002 but without furnishing any medical certificate thereto. Later he sent the medical certificate dated 5.8.2002 requiring rest from 5.8.2002 to 14.8.2002 vide his application dated 7.8.2002. Shri R K Maheshwari in a reply to an explanation called for, submitted that he had come to the Institute on 6th August at 8.55 a.m. with intention to inform the Office of his sickness from 5th August 2002 and he left the premises immediately thereafter. The conduct of Mr. Maheswari, of not submitting his medical certificate dated 5.8.2002 along with his leave application on 6.8.2002 and reminding the threat to the Dy. Director during his stay in the Institute premises for one hand half hours from 8.55 a.m. to 10.30 a.m. was a planned move for exerting undue pressure over the Dy. Director with malafide intention of threatening, disturbing the peace and willful insubordination for personal gain and as such it is the violation of CCS conduct rules 1964 and CIPET Conduct and Discipline rules.
V. That said Shri R. K. Maheshwari has failed to maintain absolute integrity and devotion to duties by willful insubordination, disobeying the internal transfer order, trespass with unlawful assembly, threatened the Deputy Director and his family members to withdraw the transfer order, disturbed the peace at the place of employment and committed misconduct acts of subversive of discipline, riotous and disorderly behaviour and acted unbecoming of CIPET Employee and thereby committed misconduct under rule 56(a), (b), (c) and 59 (2), (3), (6), (7), (8), (11), (12), (14) and (15) of CIPET Conduct and Discipline rules read with sub rule (i), (ii)) & (iii) of rule 3 of CCS conduct rules 1964.
54. Learned counsel for petitioner has vehemently argued that Inquiry Officer, Disciplinary Authority and Appellate Authority has not considered and appreciated the evidence of witnesses produced during the course of inquiry to prove charges framed against the petitioner in correct perspective. The Inquiry Officer has not conducted inquiry against the petitioner fairly and according to principles of natural justice. It is further argued that charges have been levelled against the petitioner that he visited the residence of complainant by using white ambassador car, but number of this vehicle could not be verified during the course of inquiry, therefore, this fact was not proved during the course of inquiry that the petitioner ever visited the residence of complainant on the date of alleged incident at night and threatened him.
55. We have perused the inquiry report submitted by the Inquiry Officer and reply submitted by petitioner before the Inquiry Officer. The petitioner, in his reply has contended that the complainant, being Deputy Director of the CIPET by verbal orders transferred the petitioner illegally on 09.07.2002 to work in Calibration Lab with effect from 10.07.2002 which was totally a new assignment pertaining to supervision and maintenance of heavy, costly sophisticated machines, which was a highly technical job. The petitioner was totally ignorant with the work of calibration lab. He had only post graduate diploma in Plastic testing and conversion technology only, therefore, he verbally requested the complainant-Deputy Director, to allow him to work as Senior Technical Assistant in testing lab on which post he was appointed initially. It is contended by the petitioner that complainant-Deputy Director, on the repeated verbal requests of the petitioner to allow him to work in testing lab as he does not have technical knowledge of calibration lab and he was unknown to the field of working of calibration lab, ultimately, assured the petitioner that he will discuss the matter with his junior officers and the petitioner may sit in testing lab from 05.08.2002.
56. On perusal of these contentions mentioned in reply of charge sheet, it reveal that the petitioner has not specifically mentioned the dates when verbal requests were made by him to the complainant and when the complainant permitted him to sit in testing lab from 05.08.2002. He has taken the plea of alibi that unfortunately on 05.08.2002 the petitioner fell sick due to kidney stone problem hence he could not attend the office rather went to the doctor, who advised rest due to severe pain. The petitioner has no where contended that on the date of incident on 05.08.2002 at 9:00 p.m. from where he could not reach the residence of complainant, Dr. Vijay Kumar, Deputy Director, CIPET, Lucknow. He has not adduced any defence evidence before the Inquiry Officer in this regard also. He has accepted this fact that he could not attend the office on 5.8.2002 due to his ailment of stone in his kidney. No other renal ailment was also proved by any defence evidence as alleged by him.
57. On perusal of inquiry report submitted by Inquiry Officer it reveal that Shri K. K. Sasidharan, Senior Administrative Officer, CIPET, Bhopal was appointed as Presenting Officer and inquiry was conducted on 21.02.2003, during the period from 24.03.2003 up to 27.03.2003 and during the period from 19.05.2003 up to 21.05.2003. The petitioner participated during the course of inquiry conducted by the Inquiry Officer. The Presenting Officer presented the case and examined 11 witnesses on behalf of Management. 18 documentary evidences were also produced by the Presenting Officer before the Inquiry Officer. Mrs. Jaya Mathur, wife of complainant was also examined at the Guest House premises of the Institute. Copies of deposition, examination and documents produced during the course of inquiry were made available to both the parties.
58. The petitioner has made wrong contention in grounds of this writ petition that Inquiry Officer recorded statement of Mrs. Jaya Mathur at her residence, who was wife of the complainant. This wrong contention goes against the petitioner.
59. The complainant, Dr. Vijai Kumar and his wife, Mrs. Jaya Mathur, Shri Sanjay Saxena, manager (Testing), Shri Anil Kumar Singh, Senior Administrative Manager, Dr. Sania Akhtar, Chief Manager (Testing), Shri Mehta, P.A. of the complainant were produced by the Management regarding incident dated 05.08.2002 committed by petitioner at 9:00 p.m.. These witnesses were cross examined by the petitioner himself. He did not engage any defence assistance stating that he can defend himself.
60. Learned counsel for the petitioner has further argued that the Inquiry Officer has recorded statements of Mrs. Jaya Mathur, who was an outsider and a housewife. The Inquiry Officer has mentioned in the inquiry report dated 18.08.2003 that in order to ascertain the fact and to provide justice, he had decided suo moto to record the statement of Mrs. Jaya Mathur in presence of Presenting Officer and the petitioner. The petitioner agreed and cooperated during the recording of statement of Mrs. Jaya Mathur. It is pertinent to mention here that since she was present on 05.08.2002 in the residence of complainant, being his wife, she was natural witness of the incident dated 05.08.2002 occurred at 9:00 p.m.. Therefore, there is no substance in the argument of the learned counsel for the petitioner that Inquiry Officer recorded the statement of Mrs. Jaya Mathur unauthorizedly and illegally.
61. The statement of Mrs. Jaya Mathur is mentioned in the inquiry report. We have perused the same. She had stated that she knew Shri Maheshwari, petitioner as CIPET employee and she was not knowing the other two persons who were sitting in the drawing room of her residence and discussing at about 9:00 p.m. on 05.08.2002. As a courtesy she offered water and she could feel that both Dr. Vijaikumar and Shri Maheshwari, the petitioner, were tensed and the conversation was not very cordial. After they have left she inquired the matter from Dr. Vijaikumar and she rang up to Shri Sanjay Saxena and informed about the incident. This statement of Mrs. Jaya Mathur corroborated the statement of other witnesses and Inquiry Officer has recorded the finding that charge framed against the petitioner was proved that he visited the residence of Dr. Vijaikumar, complainant, with two outsiders at odd hours on 05.08.2002.
62. The complainant, Dr. Vijai kumar has narrated the facts mentioned in the Charges-1 and 2 framed against the petitioner and stated during the course of inquiry that petitioner came on 05.08.2002 at 9.00 p.m. along with two unknown persons and knocked the main door of his residence. His daughter opened the door. The complainant asked the reasons for their coming. As the petitioner had stated that he had some matter to discuss, he called them to his drawing room. The complainant further stated that when they entered into drawing room he could feel that they were under the influence of alcohol and asked the petitioner that he knew only the petitioner, for which petitioner replied that they were his friends. While discussing petitioner asked him to transfer him back to testing department or otherwise he and his family has to face dire consequences.
63. It is further stated by the complainant that one of the accompanied persons, who was sitting across the table came towards him and sat besides him. He told the complainant to comply whatever petitioner said, otherwise he and his family had to face consequences. The complainant on seeing behaviour and listening the conversation, became astonished the manner in which his subordinate was behaving and acting, but maintained calm and did not react. His wife offered water to all as a normal courtesy and noticed the attitude of the people and she became worried.
64. The complainant also apprised the Inquiry Officer that the petitioner, Shri Ramesh Kumar Maheshwari told Dr. Vijaikumar in an authoritative tone that from the next day he will be sitting in the testing laboratory, where he was sitting before his transfer to the calibration lab. The process took about 15 to 20 minutes and while leaving, petitioner once again told him that the incident is between Dr. Vijaikumar and petitioner and should not be disclosed to anybody. The complainant came outside and he could only see that the petitioner and his companion were boarding in a white ambassador car, which was parked near the gate. Since it was around 9:30 p.m. he did not take any step in the night.
65. Regarding charges-1 and 2, other witnesses, Shri Sanjay Saxena and Dr. Sania Akhtar were also examined on behalf of Management. Shri Sanjay Saxena apprised the Investigating Officer that he was informed by Mrs. Jaya Mathur on 05.08.2002 at about 11:00 p.m. on telephone that petitioner and two unknown persons visited their house around 9:00 p.m. and demanded his transfer from the present place to testing lab under threat and dire consequences to Dr. Vijaikumar and his family. This witnesses wanted to visit the residence of complainant immediately after receiving the call from Mrs. Jaya Mathur, because he could feel that her voice was slightly panicky, but she replied that they (petitioner and his companion) left their residence and it was not required. She informed him that Dr. Vijai Kumar wants him to come to their house on the next day morning. When this witness reached on 06.08.2002 at about 8:30 a.m. at the residence of Dr. Vijai Kumar, the complainant apprised him about the incident that took place on the previous night.
66. Likewise Dr. Sania Akhtar apprised the Inquiry Officer that she considered the petitioner as her student first, then as a subordinate. On hearing the incident from Deputy Director, she was surprised about the behaviour of petitioner and she could not imagine that petitioner will behave in such a way so she thought it might have happened because of some provocation. As petitioner was one of the CIPET family members. She never wanted immediate severe action rather than she wanted to take some corrective steps, therefore, she contacted father of petitioner over telephone. He told that two unknown persons were his friends sent by him. He was not feeling sorry for his son's behaviour, on the other hand he justified his son's action.
67. Shri Mehta, P.A. of complainant wrote the complaint on 06.08.2002 on behalf of complainant and it was sent to the police station. Dr. Sania Akhtar also apprised him that she wanted to talk with the father of petitioner over telephone, therefore, he provided telephone number of father of the petitioner to Dr. Sania Akhtar.
68. Witness, Shri Anil Kumar Singh, Senior Administrative Manager, has adduced evidence that he knew petitioner very well since 1992. He stated that on 05.08.2002 he along with Mr. Sinha, Senior Technical Officer was passing in front of the residence of Dr. Vijai Kumar and saw a white ambassador car parked there. This witness did not disclose complete registration number of this white ambassador car, but he had stated that this car belongs to Kanpur jurisdiction. As Dr. Vijai Kumar was also belonged to that place, they thought some relatives might have come and hence they did not go to the house of Dr. Vijai Kumar.
69. He has also apprised the Inquiry Officer that on the next day on 06.08.2002 he came to know in the morning about the incident at the residence of complainant. The Inquiry Officer has recorded finding that witnesses, Shri Sanjay Saxena, Dr. Sania Akhtar and Shri Anil Kumar Singh corroborated the statements of complainant Dr. Vijai Kumar. Mrs. Jaya Mathur also corroborated the statements of her husband. The Inquiry Officer recorded the finding that Charges-1 and 2 were proved against the petitioner on the basis of evidence adduced.
70. The inquiry officer has recorded finding regarding charges nos. 1 and 2 that main issue was relating to visit of the petitioner at the residence of complainant Dr. Vijay Kumar on 25.08.2002 at 9.00 p.m.. The fact that management/complainant could not prove Registration Number of White Ambassador Car is not so material and held that on the basis of evidence adduced by the witnesses that the petitioner went at the residence of the complainant on the date of incident by White Ambassador Car is proved and the same was parked near gate of residence of the complainant, according to witness Sri Anil Kumar Singh, Senior Administrative Manager SW-9.
71. Learned Counsel for the petitioner has argued that one Mr. M.K.Sinha introduced the Registration number UP 78 S 0677 of the said white Ambassador Car, which was on verification found registration number of LML Scooter and not of a Car. It is further submitted that the complainant has not mentioned any registration number of alleged white Ambassador Car by which the petitioner allegedly went at the residence of the complainant on the date of incident. Likewise, it is further submitted that witness Jagdeep Yadav did not drive this vehicle or identified the petitioner and his companions. He disclosed the registration number U.P. 78 S 0677. It is mentioned that DW-1 Mr.Tikku- Proprietor of M/s Chauhan Travels has stated that this Car was provided to Mr. Lal, Joint Commissioner of Income Tax, Faizabad for a long period. Therefore, evidence of Jagdeep Yadav who was out sider was not reliable that petitioner went at the residence of the complainant-Dr. Vijay Kumar in this vehicle on 05.08.2002 at 9.00 p.m.
72. The witness Jagdeep Yadav was produced by the management as its witness, who was cross examined by the petitioner. This witness has apprised the Inquiry Officer that three to four people engaged his car of white colour on 05.08.2002. He remembered that they had visited LDA colony, where Dr. Vijay Kumar resides. Copy of the Log Book maintained by this witness SW-11, was submitted as exhibit. Therefore, witness Jagdeep Yadav also corroborated the version of witnesses, Dr. Vijay Kumar-complainant and his wife Mrs. Jaya Mathur that he went at the house of complainant in white car, which was drove by him on 05.08.2002. The Inquiry Officer has rightly discarded the verification report provided by the R.T.O. Kanpur. There is no substance in the arguments put forth by learned Counsel for the petitioner in this regard.
73. The Inquiry Officer has rightly rejected the contention of the petitioner that Registration number of White Ambassador Car could not be verified. There is no substance in the argument of learned Counsel for the petitioner that Inquiry Officer verified this Registration Number on his back from Income Tax Commissioner and evidence of witness Mr. Jagdeep Yadav could not help the version of the management in this regard.
74. The Disciplinary Authority vide impugned order dated 24.11.2003 has considered charges framed against the petitioner and conclusions arrived at by the inquiry officer. Disciplinary Authority has independently appreciated the evidence available on record. He has recorded his findings as follows:
"It has been indicated by the Inquiry Officer that the issue involved is not the vehicle used, but the incident. The necessity of bringing the owner of the vehicle alleged to be used by Shri Maheswari by himself is unexplained by him. The Defence Witness brought by Sri R.K. Maheswari has stated that Shri R.K. Maheswari approached him with folded hands to save him, hence he came to depose in favour of him. The Defence Witness has again stated that the copies of the diary which he has produced in the inquriy does not have the vehicle number and after taking photocopies, the numbers were subsequently included. Further he has stated that the vehicle in question was let on rent to one Mr. Lall, Joint Commissioner, Income Tax. But on verification it is found that Mr. Lall has retired from service way back in February 2002 whereas the incident took place on 5.8.2002. The Charged Officer did not produce the original log book which he has agreed to produce during the inquiry. It is for Mr. Maheswari to prove his innocence. In fact the deposition of Defence Witness provide more strength to the findings of the Inquiry Officer. The Inquiry Officer has simply stated that the statement of DW1 is not reliable, because of the contradiction in his statement.
On further perusal of the Inquiry proceedings, it is found that Shri R.K. Maheswari has thanked the Inquiry Officer for giving adequate opportunities and time to defend the case more than his requirement. In fact he has thanked the Inquiry Officer for giving adequate time enabling him to attend some social functions during the period. It makes me to conclude that Shri R.K. Maheswari is not very clear in his stand. Under one count he thanks the Inquiry Officer for giving fair opportunities on the other count underscores the Inquiry Officer.
On Perusal of the inquiry proceedings it is further cleared that Shri R.K. Maheswari enjoyed very good relationship with all the fellow officials and there was no enmity or hatred among themselves. hence his contention on enmity, victimisation is unfound. ...........................
...........The action on the part of Shri R.K. Maheswari is unwarranted, brought down the reputation of the organization and highly demoralized the entire staff of CIPET, Lucknow. Keeping such person in an Educational Institution will be detrimental to the interest of the organization and will send wrong signals across the entire CIPET community.
Discipline, honesty and integrity are the essential traits to be imbibed and in built with the employees of any Organisation to achieve its goal and excellence. Keeping such a scrupulous element in the organisation will have disastrous and catastrophical effect of any organization.
Hence, I do not find any mitigating reasons to alter the penalty already proposed in earlier memorandum dt. 2nd September 2003. Further in the interest of maintaining discipline, integrity, morale of the Institute, I am of the firm opinion that Shri R.K. Maheswari is not a fit person to be retained in the services of CIPET."
75. After passing of punishment order dated 24.11.2003 by disciplinary authority Appeal preferred by the petitioner was considered by the Appellate Authority afresh after quashing of order dated 08.03.2004 passed by appellate authority Director General as directed by this Court vide judgment dated 12.06.2009, and afforded further opportunity to prefer fresh appeal.
76. On perusal of order dated 27.10.2009, it reveal that appellant was given a fare opportunity to present material, statements, arguments and also a personal hearing to enable the Appellate Authority to decide the appeal in just and equitable manner based upon the petitioner's grounds of Appeal and relevant records supplied by him.
77. The contentions raised by the petitioner in his appeal dated 05.08.2009 were considered by the Appellate Authority and it was found that seven points were raised by the appellant. These seven points raised by the petitioner were as follows:
" 1) Enquiry Officer played the role of investigating officer. As per the enquiry report, enquiry officer went to the Income tax commissioner for investigation.
2) The Appellant was not allowed to ask the address of the driver Mr. Jagdeep Yadav who was presented by Sri A.K.Singh (Administrative Officer).
3) The registration no. of vehicle mentioned in the charge sheet as an ambassador car was exactly a registration no. of a scooter, which was certified by the R.T.O. It proves that beginning of charge was based on untrue facts.
4) According to the charge, the Deputy Director was threatened by arms and Deputy Director telephoned to Shri Sanjay Saxena at the same time. But according to Sri Sanjay Saxena's statement, he reached next day morning. Is it possible for a responsible officer to reach so late next day morning. It proves this charge was well planned after thought.
5) It must be noted that incident with Dy. Director was complained at police station by Shri Saxena and Shri A.K. Singh after two days and police did not take any action.
6) It must also be noted that there was no eye witness and all witness were telling they heard from others. There is no importance of hearsay evidences.
7) The Appellant himself at the end of the enquiry at Page 2 of Enquiry Proceedings dated 21.05.2003 had stated that "a fair opportunity was given to defend his case" Appellant has also been thankful to the Inquiry Officer for giving him enough time more than his requirement and that he could also attend certain social family functions during this period. This goes to prove the fact that adequate time and opportunity has been given to the Appellant to defend his case. Appellant cannot now go back against his own admission."
78. The Appellate Authority has appreciated evidence of management/witnesses separately on the basis of the above mentioned points raised by the petitioner. We have perused these findings recorded by the Appellate Authority which found that Disciplinary Authority has imposed penalty on the petitioner, which is not excessive and considering the misconduct of the petitioner. Therefore, Appellate Authority has answered objections raised by the petitioner in grounds of appeal preferred by him in correct perspectives.
79. As far as learned Counsel for the petitioner has vehemently raised deficiency in decision making process about recording of statement of Mrs. Jaya Mathur, wife of the complainant and the non-verification of Registration Number of White Ambassador Car, finding has been recorded by Appellate Authority as follows:
Regarding Point No.3:
"If it was so, the question which immediately comes to our mind is that, why was the same not stated by the Appellant during the course of the inquiry proceedings. The point that the registration no. U.P.-78 S 0677 was that of a ambassador car could have been disproved easily during the examination of defense witness DW-1 (Shri Tikku- Proprietor of M/s Chauhan Travels) by the Appellant. As the point was never raised during the Inquiry by the Appellant, it shall be considered only as a baseless remark with an intention to confuse the whole case. The contention of the Appellant is only a statement with no proof and is only an after thought to confuse. Hence it has no credence at this stage. The fact that 03 persons came in Ambassador Car has been proved by evidence in the enquiry and Appellant also cross-examined them. In my considered observation, this plea of Appellant at this stage of appeal is without basis and proof."
Regarding statement of Mrs. Jaya Mathur.
...... "The statement of Mrs. Jaya Mathur, a direct eye-witness for the incident, taken in the guest house in the presence of the Presenting Officer and the Appellant, categorically reveals that the Appellant with two other persons had gone to the residence of Dr. Vijay Kumar and threatened him and his family of dire consequences. A copy of the same was received and acknowledged by the Appellant. There is no evidence of any previous enmity between the Appellant and Mrs. Jaya Mathur, wife of the Deputy Director who was threatened at his residence. There is also a non-existence of a proper reason why an eye-witness Mrs. Jaya Mathur should make false allegations against an employee of CIPET. This also goes to disprove the statement of the Appellant that all the evidences are only hearsay witnesses. Therefore, the Appellate Authority is quite convnced that the written testimony given by the above eye-witness is true, based on recorded facts and proved in the Enquiry against the appellant.
The defense witness (DW-1) has stated during the cross-examination that the documents which he had provided to the Appellant which in turn the Appellant has filed before the enquiry did not have the vehicle number in the original copy and the defense witness himself had stated that he had written the vehicle no. on the photocopy of the documents. The copies of such documents need to be treated as forged documents and cannot be taken as reliable documents. Apart from that, when the difference in signatures as appearing in different papers submitted before the enquiry was pointed out to the defense witness (DW-1) by the Presenting Officer during cross examinations, the DW-1 claimed that he puts different signatures on different occasions as per the need. His own statement given during cross-examination, that he being a Thakur (by caste), thought of helping the Appellant when he approached with folded hands to save his employment by giving witness, is worth to be noted. It shows that he had come to some-how save the Appellant and not to give true depositions before the Inquiry Officer. His statements, such as not caring to pay statutory dues and providing fabricated documents, putting different signatures etc. are enough to treat him as an unreliable witness. Hence the defence witness (DW-1) and his documents should be summarily rejected, and cannot be relied.
Thus it is amply clear that the Charge 1 i.e. the "Appellant had gone to the residence of Dr. Vijai Kumar's residence on 5.8.2002 at 9.00 p.m. with two unknown persons and threatened him with serious consequences if he was not transferred back to testing department" and the Charge 2 i.e. that the "Appellant entered the official residence on 5.8.2002 at 9 p.m. and threatened the deputy director of dire consequences and informed that he will do the shifting of his seating arrangement the very next day and behaved recklessly and challengingly stated that nobody can stop him from doing so" and the Charge 3 i.e. that he entered the testing laboratory and had ordered the junior staff to make his seating arrangement and that he roughly handled the equipments to make his seating arrangement in the lab without the approval of the competent authority and the Charge 4 i.e. "that the Appellant as he could not succeed in his efforts to be back to Testing department he left the premises at 10.30 am on 6.8.2002 without getting approval of the competent authority and by simply submitting an application stating that he was not well since 5.8.2002 without any medical certificate and his act constitute unbecoming of a staff of the Institute" and the Charge 5 that the "Appellant failed to maintain absolute integrity, devotion to duties by willful insubordination, disobeying the orders of the superiors, trespassing into the premises and behaved roughly with the officials" has been proved in the inquiry."
Regarding contention that penalty imposed by the disciplinary authority was excessive. The Appellate Authority has recorded finding as follows:
"CIPET is a premier National Institution devoted to Academic, Technology Support & Research for the Plastics & allied industries, in India enjoying a very high reputation in India and abroad. The Conduct and Discipline rules of CIPET advocates that every CIPET employee shall at all times do nothing which is unbecoming of a CIPET employee. Acts and conduct which are prejudicial to the interests or reputation of the Institute, inconsistent or incompatible with the due or peaceful discharge of duty, making it unsafe for the employer to retain him in service, grossly immoral that all reasonable people will say that the employee cannot be trusted, disturbing the peace at the place of his employment, insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation with the institute and riotous, disorderly behavior during and after the office hours or in institute premises are recognized as punishable misconducts. The above goes to prove that CIPET as an organization does not tolerate indiscipline. The conduct of Shri R.K. Maheswari trespassing into the Centre Head's official residence with two un-known persons at 9.00 p.m. when he was with his family members threatening him with serious consequences if he was not transferred back to the testing department where he was originally working, shifting the instruments and equipments to make his seating arrangement in a department with restricted entry without the approval of the competent authority and leaving the CIPET work premises during duty hours without valid reason or prior permission of the concerned authority amounts to a very serious misconduct. These acts not only create panic, fear and insecurity among the employees but also the same among the family members of the employees of CIPET. Moreover the work schedules of the Departments of CIPET also get affected due to the disturbance caused in the organization apart from greatly damaging the reputation of the Institute. Such employees if allowed to continue in employment would set a wrong precedent/delusion that employees who exhibit incorrigible behavior shall get away with minor penalties and this would directly encourage indiscipline in the organization. Therefore, the Appellate Authority is of the opinion that the penalty of termination of service awarded to the appellant was just and proper.
Hence, I do not find any merit in this appeal. Accordingly the appeal of Shri Ramesh Kumar Maheswari is rejected."
80. On perusal of the order dated October 27, 2009, it is crystal clear that Appellate Authority has appreciated evidence of witnesses and evidence of defence witness produced on behalf of the petitioner in correct perspectives.
81. The following conclusions arrived at by the inquiry officer were found based on evidence adduced by the management. Inquiry Officer has recorded the following conclusions in his inquiry report:
"The defendant was given all possible at assistance/help over and above his requirements in conducting the inquiry. The documents were made available then and there. The inquiry was completed in an atmosphere of mutual trust, confidence and goodwill. The contention of the Charged Officer that a senior level Officer on all India level head of the administration has been appointed as Inquiry Officer will not support his claim. On the other hand, the Management has taken a judicious decision of appointing a senior officer to conduct the inquiry in a fair and just manner to establish the fact. The defendant was offered to use the services of any CIPET official as defence assistant, for which he declined stating that he can defend himself. His contention that he was orally denied to use the services of outside Govt. employee is not maintainable. It is an after thought. CIPET has no authority to direct Govt. official to take up this work. CIPET is not a regular Govt. Department, it is an autonomous organisation having its own rules and regulations. CIPET rules provide only to use the assistance of any CIPET official as defence assistant.
He was also given enough time to produce two of his witnesses whom he has cited as defence witness and infact one day adjournment was given only to facilitate him to bring his friend Mr P Ojha as DW-2. Finally he could not produce him and even though enough time was given from 27.3.2002 to 19.05.2002 to identify, prepare and produce the witnesses.
His contention that Management has produced one outside witness is not maintainable. He ought to have objected at the initial state is itself. Having agreed and cross examined raising this point is only after thought. Moreover no rules prohibits the deposition of outside witness.
The Charged Officer has not objected the production of one outside witness by the management and also the sumoto decision of the Inquiry Officer to record the statement of Mrs. Jaya Mathur. On the other hand the Charged Officer has cross examined the Management witness and the statement of Mrs. Mathur was recorded in his presence and a copy of the same was received and acknowledged by him."
82. Learned Counsel for the petitioner has pointed out during argument that in reply to the charge-sheet, the petitioner was permitted by the complainant Dr. Vijay Kumar himself to shift his sitting arrangement from the Calibration Lab to Testing Lab.
83. We have perused reply dated 10.12.2002 submitted by the petitioner in which it is mentioned by him that when petitioner made verbal request to the complainant for his transfer back from Calibration Lab to Testing Lab, which is as follows:
"............The applicant on 06.08.2002 at 8.55 went to the office to give application for medical leave and after giving Medical Leave application, applicant went to the Testing Lab II to meet his colleagues where Shri K.J. Ghai, STO (P/T) and Sri Bhikha Lal helper were also present. The applicant informed them about verbal order of the Deputy Director for sitting in Testing Lab from 5th August 2002 (Monday). The applicant told that on Monday i.e. 5th August 2002 he fell sick and could not come to office, today he has come to give application as he is still not well as kidney pain still persists. Shri Ghai told the applicant "very good" as lot of work is suffering in your absence" He also instructed Shri Bhikha Lal, helper in presence of the applicant to make previous original seating arrangement of Mr Maheshwari so that when he will be medically fit, he will sit in his previous sitting place. After the above talk with Shri Ghai, when the applicant was coming out from the testing lab-II, Shri Sanjay Saxena, Manager (P/T) came in the Testing Lab. The applicant wished him and also informed him about the verbal instructions of the Deputy Director to the applicant to sit at his original place in Testing Lab-II and he will sit in testing lab when he will become medically fit.
The applicant thereafter went to the respected Deputy Director to inform him about his illness. The applicant with due permission of the respected Deputy Director, entered in his room, wished him and explained that the applicant has come to give medical leave application of his illness due to kidney stone problem. The applicant also submitted that he has informed Shri K.J. Ghai STO (P/T) and Shri Sanjay Saxena Manager (P/T) about Deputy Director's verbal instructions that applicant will sit in the Testing Lab-II and requested them to make arrangement as previous sitting place. Then the Deputy Director told the applicant to wait in his PA's room for some time, in the meanwhile he will discuss first with Shri Sanjay Saxena and will also talk to Dr. Saniya (Chief Manager). Accordingly applicant waited in the room of his P.A. The Deputy Director called Dr. Sania in his room but what transpired in the discussion, the applicant could not know as he was waiting in the PA's room as per instructions of the Deputy Director. After discussing with Dr. Saniya, respected Deputy Director called the applicant and told to meet Dr. Saniya.
Accordingly, the applicant went to the room of Dr Saniya, who told the applicant that Dr Vijaya Kumar (Deputy Director) has told that applicant has to work in calibration lab and it is his final decision."
84. The management witnesses have adduced evidence against contentions of the petitioner. The inquiry officer has mentioned statements of these witnesses in his inquiry report and appreciated evidence of Sri Kamal Jit Ghai, STO, Bhikha Lal, Helper and Mr. Pankaj and Mrs. Rashmi Singh, which is mentioned in Inquiry report and it is as follows:
"Statement of Shri Kamaljit Ghai, STO:
Mr Ghai, Sr. Technical Officer has stated that he was appointed at CIPET Lucknow in Feb, 2002 and his relationship was very cordial with Mr. Maheshwari. On 6.8.2002, he went to the institute around 8:50 a.m. and he saw Mr. Maheshwari coming to the lobby and Bhikha Lal was going to the testing labs side to open the door and Mr. Maheshwari also went to the testing lab and he asked Mr. Maheshwari how is that he is coming to the testing lab instead of going to Calibration lab, for which Mr. Maheshwari replied that he has been asked by the Dy. Director to shift his seating arrangement in the testing lab and accordingly doing that. Mr. Ghai told him that he did not get any information till 5:30 p.m.. On 5.8.2002 regarding his transfer for which Mr. Maheshwari replied that he met the Dy Director at his residence on the previous day night and got instruction. As he was using the name of Dy Director, he thought that he might have got some instructions from Dy Director. He further stated that he could see Mr. Maheshwari asking Mr Bhika Lal and Pankaj to shift the Dart Impact tester from the present place to the previous place and the Steel almirah to the other side. He also saw Mr. Maheshwari kicking some of the samples lying near the machine and with the help of those people he shifted the machine to make space for his table and chair in the testing lab. He asked Mr Bhika Lal to bring his chair and table from the calibration lab and instructed Mr. Pankaj to bring the telephone wire and keep the telephone in the previous place where he was sitting. As the process was going on he could see that Mr. Sanjay Saxena, Manager (Testing) was going towards Dy. Director room and immediately he rushed and informed Mr. Saxena about the transfer of Mr. Maheshwari back to testing lab I. Sri Bhikha Lal, helper SW-3) and Mr. Pankaj, (SW-4) corroborated the statement of Mr. Ghai.
Mrs Rashmi Singh (SW5) has stated that on 6.8.2002 see could see changes in the testing lab and stated that she saw the telephone was being shifted to the place where Mr. Maheswari was sitting earlier so that the almirah and other equipments shifted. She further stated that Mr. Maheswari told her that he has come to the testing lab."
Complainant Dr. Vijay Kumar has disclosed incident dated 06.08.2002 committed by the petitioner in the testing and calibration lab. The Inquiry Officer has mentioned in his Inquiry report statement of the complainant regarding this incident in detail, which is corroborated by the statement of the above mentioned witnesses. We have perused statement of Dr. Vijay Kumar mentioned in Inquiry report in this regard.
85. Charge nos. 3 and 4 was proved against the petitioner on the basis of evidence adduced by the witnesses and the Disciplinary Authority and Appellate Authority have appreciated evidence recorded by inquiry officer independently and separately and recorded their findings, which cannot be termed as perverse or against facts and evidence available on record of inquiry proceedings. There was no infirmity in the decision making process during the course of inquiry.
86. As far as learned Counsel for the petitioner has argued that medical leave of the petitioner was not sanctioned, whereas his medical expenses were reimbursed to him. We have perused contentions of the petitioner regarding Charge no.4, which is as follows:
"Charge No. IV. Initially vide request letter dated 2.8.2002 applicant got cancelled sanctioned E.L. from 5th to 14th August 2002 is accepted..............
................................But as the applicant fell sick on 5th August, 2002 due to kidney stone trouble and was bed ridden, he did not attend office..........
..........So far as the charge "but without furnishing any medical certificate thereto", it is respectfully submitted that it is a practice in the CIPET Lucknow that the employees furnish Medical Certificates in support of Medical Leave application when they rejoin their duty after becoming medically fit. However, when the applicant fell sick on 5.8.2002 and submitted the Medical Leave application on 6.8.2002 and also sent medical advices for rest by the doctor from time to time sent by post. Thus the applicant has kept the office very well informed about his ailment.........
..........................The office has also allowed re-imbursement of medical expenses. But neither medical leave has been sanctioned nor salary has been released to the applicant for the period of medical leave for the reasons best known to the authorities concerned.".......................
87. It is relevant to mention here that the petitioner has accepted that he got cancelled sanctioned earned leave from 5 to 14 August, 2002. He could not prove by defence evidence that he fell sick on 05.08.2002 due to kidney stone trouble, was bed ridden and could not move. Although he had not attended office on 05.08.2002 as contended by him, but according to evidence adduced by the witness of management his presence on 05.08.2002 at 9.00 p.m. at residence of complainant and on 06.08.2002 in the Calibration and Testing Lab was established by the management witnesses and charges 1 to 4 were found to be proved.
88. Regarding Charge no.5, findings has been recorded by Inquiry Officer, Disciplinary Authority and Appellate Authority in correct perspectives and these findings cannot be termed as perverse or against evidence available on record.
89. Learned Counsel for the petitioner has vehemently argued relying on Case Law V. Abusali Vs. The Commandant and others (1995) ILLJ 547 Ker that Division Bench of Hon'ble Kerala High Court relying upon decision in case R.L.Sharma Vs. Managing Committee Dr. Hari Ram (Co-edu) H.S. School, AIR 1993 SC, 2155 has held that Inquiry Officer should not be subordinate to the complainant such a question of prejudice or bias would go to the root of the case and make the entire proceedings a nullity.
90. It is relevant to mention here that the petitioner in para 20 of writ petition has stated that respondent no.3 informed him that Shir K. Manhohan, Chief Manager, F & A, i.e. opposite party no.5, then in CIPET Corporate Office, Chennai was appointed as Inquiry Officer and Shri K.K. Shashidharan, Senior Administrative Officer, who was posted at CIPET, Bhopal, had been appointed as Presenting Officer.
91. The petitioner has not raised any objection in his reply submitted on 10.12.2002 that since Inquiry Officer was subordinate to the complainant-Dr. Vijay Kumar, therefore, he should not be appointed and permitted to conduct inquiry against him. On the other hand, he participated during the course of inquiry and cross examined the witnesses produced on behalf of management. The charges nos. 1 to 3 were found to be proved on the basis of evidence recorded by Inquiry Officer regarding incident dated 05.08.2002 and 06.08.2002 committed by the petitioner.
92. Shri K. Manhohan, Chief Manager, F &A, was posted at Headquarter of CIPET at Chennai, therefore, he was not the immediate subordinate to the petitioner. Likewise, Sri Shri K.K. Shashidharan, Senior Administrative Officer was posted at CIPET, Bhopal, who was appointed as Presenting Officer, therefore, both these officers were not posted with the complainant Dr. Vijay Kumar at CIPET Centre Lucknow. The petitioner could not prove any circumstance on the basis of which he was prejudiced adversely during the course of inquiry and Inquiry Officer was biased during the course of inquiry. The Inquiry Officer had tried to make inquiry in fare and impartial manner as it revealed from the inquiry report dated 18.08.2003 submitted by him. It cannot be said that during the course of inquiry the petitioner was prejudiced adversely in any way or inquiry officer was biased against him.
93. Learned Counsel for the petitioner has lastly argued that learned Tribunal has not considered his contentions regarding deficiency in decision making process and biased conduct of Inquiry Officer during the course of trial and O.A. has been dismissed by the Tribunal without considering that Inquiry Officer has submitted report against the petitioner ignoring some material facts and contention of the petitioner as pointed out in ground of O.A.
94. We have perused impugned judgment dated 19.05.2014. Learned Tribunal has relied upon various exposition of law propounded by learned Apex Court regarding judicial review and learned Tribunal has delve deeply in the facts and circumstances of present case and disciplinary proceedings conducted by the Inquiry Officer against him. Learned Tribunal has recorded the following findings:
"12. Applying the above law, we do not find any ground to interfere with the findings of disciplinary authority or the appellate authority to the effect that charges were proved that the applicant went to the residence of Project Director (Opposite Party No. 4) in the night of 5th August, 2002 to threaten him with a view to put pressure on him to recall or get recalled the transfer order shifting him from Testing Section to Calibration Section, that the applicant trespassed into the office to shift his seat from Calibration Section to Testing Section, that the applicant again threatened the Project Director, Head of the Centre in the morning of 6th August, 2002 in his office. As many as eleven witnesses were examined by the presenting officer to prove the charges against the applicant. Dr. Vijay Kumar, Dy. Director, opposite party No. 4, A.K. Singh, Sr. Admn. Officer, Mr. Sanjay Saxena, Manager, Testing, Dr. Sania Akhtar, Chief Manager, Kamal Jit Singh Ghai, Sr. Technical Officer, have consistently find facts which go to prove the charges against the applicant. Thus, there was sufficient evidence to reach the conclusion that the charges were proved.
13. As to the fair opportunity to the applicant, the applicant himself at the end of enquiry at page 2 of enquiry proceedings dated 21.5.2003 has stated that fair opportunity was given to him to defend the proceedings. This is what has been stated by the appellate authority at page 5 of its order dated 27.10.2009. Thus, the applicant himself was satisfied with the enquiry having been conducted in a fair manner.
14. Before we part, it may be mentioned that the defence set up by applicant is not believable. The applicant wants us to believe that he did no go to the residence of Dy. Director in the night of 5th August, nor did he go to office in the morning of 6th August for shifting his seat from Calibration to Testing Laboratory and that the entire story is concocted. It would mean that all the officers and employees of the organization have collected together to concoct a story of misconduct against the applicant for no good reason. Such a defence is one which provokes comments in itself.
15. We may also observe that the fact that the applicant used a car to go to the residence of Director in the night of 5th August is not a relevant fact. The enquiry officer has rightly observed that use of a car was not a issue. Similarly, the fact that FIR with police was lodged with delay is not material. It was not a criminal matter. The police had nothing to do. It was a matter of an employee indulging in misconduct.
16. As regards the quantum of punishment, we may only refer to the findings of appellate authority and say that we agree. The reason is that the misconduct on the part of applicant was serious. An employee can not be allowed to threaten or browbeat his superior to serve his own end. This should be treated as an extreme act of indiscipline.
17. Considering the observations made by the Hon'ble Apex Court as well as the entire proceedings conducted by the authorities, we do not find justified reason to interfere in the present O.A.. Accordingly, the O.A. is liable to be dismissed."
The O.A. was dismissed by the Tribunal vide impugned judgment dated 19.05.2014.
95. Learned Counsel for the petitioner has also relied upon other authorities; Kuldeep Singh Vs. Commissioner of Police and others (1999) 2 SCC 10; Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610; State of Uttar Pradesh and others Vs. Saroj Kumar Sinha (2010) 2 SCC 772; Ram Prasad Meena Vs. Union of India and others 2005 (1) AISLJ 296.
96. We have perused these Case Law, the relevant paragraph relied upon leraned Counsel for the petitioner are reproduced as follows:
In the Case of Kuldeep Singh v. Commr. of Police, reported in (1999) 2 SCC 10, the Apex Court held in Para 6 to 8 as under:
"6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the Court interfere. 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 [(1978) 3 SCC 366 : 1978 SCC (L&S) 458 : AIR 1978 SC 1277 : (1978) 3 SCR 708] 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 state 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 as in that event, the findings recorded by the enquiry officer would be perverse.
8. The findings recorded in a domestic enquiry 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. This principle was laid down by this Court in State of A.P. v. Rama Rao [(1964) 2 LLJ 150 : AIR 1963 SC 1723 : (1964) 3 SCR 25] in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain[(1969) 2 LLJ 377 : AIR 1969 SC 983] and Bharat Iron Works v. Bhagubhai Balubhai Patel [(1976) 1 SCC 518 : 1976 SCC (L&S) 92 : 1976 Lab IC 4 : AIR 1976 SC 98 : (1976) 2 SCR 280] . In Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 : (1985) 1 SCR 866] it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated."
In the Case of Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd., reported in 2003 (21) LCD 610, the Allahabad High Court has held in Para 7 to 15 as under:
"7. In a Division Bench of this Court in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills, 2000 (1) UPLBEC 541, in which one of us (Hon'ble M. Katju, J.) was a member, this law has been laid down. The law is as follows:
8. After a charge-sheet is given to the employee an oral enquiry is a must whether the employee requests for it or not. Hence, a notice should be issued to him indicating him, the date, time and place of the enquiry. On that date the oral and documentary evidence against the employee should first be led in his presence vide A.C.C. Ltd. v. Their Workmen, (1963) 2 Lab LJ 396 (SC). Ordinarily, if the employee is examined first it is illegal vide Anand Joshi v. MSEC, 1991 Lab IC 1666 (Bom), S.D. Sharma v. Trade Fair Authority of India, (1985) 2 Lab LJ 193 : (1985 Lab IC NOC 42) (Delhi), Central Railway v. Raghubir Saran, (1983) 2 Lab LJ 26. No doubt in certain exceptional cases the employee may be aked to lead evidence first vide Employers of Firestone Tyre and Rubber Co. Ltd. v. Their Workmen, AIR 1968 SC 236. but ordinarily the rule is that first the employer must adduce his evidence. The reason for this principle is that the charge sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. Where no witnesses were examined and no exhibit or record is made but straightaway the employee was asked to produce his evidence and documents in support of his case it is illegal vide P.C. Thomas v. Mutholi Co-operative Society Ltd., 1978 Lab IC 1428 (Ker) and Meenglas Tea Estate v. Their Workmen, AIR 1963 SC 1719.
9. It is also necessary that ordinarily the statement of all the "witnesses of the employer should be recorded in presence of the employee unless there are compelling reasons to act otherwise vide Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708, Central Bank of India v. Prakash Chand, AIR 1969 SC 983 etc. If the witnesses are examined in the absence of the employee and their recorded statements were also not supplied to him this procedure is illegal vide Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) 2 Lab LJ 78 (SC), India General Navigation and Rly. Co. Ltd. v. Its Employees, (1961) 2 Lab LJ 372 (SC), Bharat Sugar Mills Co. Ltd. v. Jai Singh, (1961) 2 Lab LJ 644 (SC), Sur Enamel and Stamping Works Ltd. v.Their Workmen, AIR 1963 SC 1914, Vysya Bank v. N.M. Pai, 1994 Lab IC 1429 (Kant) etc.
10. In Meenglas Tea Estate v. Their Workmen, AIR 1963 SC 1719 the Supreme Court observed "It is an elementary principle that a person who is required to answer the charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled if the result of the enqulry can be accepted.
11. In S.C. Girotra v. United Commercial Bank, 1995 Supp (3) SCC 212 the Supreme Court set aside the dismissal order which was passed without giving the employee an apportunity of cross examination. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. The Court also held that in the enquiry the witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross examine those witnesses and to lead evidence in his defence. In Punjab National Bank v. AIPNBE Federation, AIR 1960 SC 160 (vide Paragraph 66) the Supreme Court held that in such enquiries evidence must be recorded in presence of the charge sheeted employee and he must be given opportunity to rebut such evidence.
12. In Subhash Chandra Sharma's case, (2000 (1) UPLBEC 541) (supra), it was held that a dismissal order has serious consequence and should be passed only after complying with the rules of the natural justice as mentioned above. Against that decision, as S.L.P. was filed which was dismissed.
13. The decision of the Division Bench of this Court in Subhash Chandra Sharma's case, (2000 (1) UPLBEC 541) (Supra) was followed by a learned single Judge in Om Pal Singh v. District Development Officer, 2000 (2) UPLBEC 1591 : (2000 Lab IC 3140).
14. In Sahngoo Ram Arya v. Chief Secretary, 2002 All LJ 993 a Division Bench in which also one of us (Hon'ble M. Katju, J.) was a member took the same view relying on another Division Bench decision in Radhey Shyam Pandey v. Chief Secretary, 2001 All LJ 1859.
15. The same view was also followed in another Division Bench decision (unreported) in Dharmpal Singh v. Appellate Authority Writ Petition No. 39410 of 2000 decided on 16-5-2001.
In the Case of State of U.P. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772, the Apex Court has held in Paras 27 to 30 as under:
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."
In the Case of Ram Prasad Meena vs. Union Of India (UOI) and Ors., reported in 2005 (1) AISLJ 296, The Tribunal has held in Paras 11 to 20 as under:
"11. Before adverting to the factual aspect of this case, we would like to notice the scope of judicial review by the Courts including the Tribunals which has been elaborated in number of decisions of Hon'ble the Supreme Court and some of them are in cases of Commissioner and Secretary to the Government and Ors. v. C. Shanmugam, : (1998) 2 SCC 394 and in case of Union of India and Anr. v. B.C. Chaturvedi, (1995) 6 SCC 750. In these cases, their Lordships of Hon'ble the Supreme Court have held that the Tribunal cannot re-appreciate the evidence and substitute its own findings. While, there is no quarrel on the statement of law on the scope of judicial review, we are very clear in our mind regarding the scope of judicial review that we do not have any power to appreciate or re-appreciate factual aspect and to substitute our own judgment for that of the Competent Authority. It is only When the conclusion upon consideration of evidence, reached by the authorities concerned is perverse or suffers from patent error on the face of the record or is based on no evidence at all or the decision making process was faulty or the order is otherwise perverse, the intervention of the Court may be warranted. In the present case, we find that the decision making process was faulty in as much as the inquiry proceedings have not been conducted in accordance with the rules in force. Mandatory provisions of law have been thrown overboard. The penalty order has been passed exclusively on the basis of extraneous material that has been gathered by permitting the additional witnesses and additional documents, which were not listed in the Annexures III and IV, respectively, to the charge-sheet. Therefore judicial intervention has become essential in this case.
12. To appreciate the controversy, we also take judicial notice of Rules 9(17) and 9(18) of the rules, which deal with the procedure for recording the evidence adduced on behalf of the prosecution. The contents of the same are extracted as under:
"9(17). On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled tore-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
"9(18). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and re-examine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally."
13. Now adverting to the facts of this case, the Inquiry Officer on dated 30.3.99 conducted the preliminary hearing of the inquiry. The P.O. made a prayer for calling two witnesses in support of prosecution without indicating any reason what so ever and the I.O. without any question allowed the same. Similarly two more witnesses, namely Shri S.W. Shaikh Ismain Suleman and S.B. Jadhav, were allowed to be produced as a prosecution witnesses just in the name of proving a document as false, produced on behalf of the applicant (which was found to be genuine during inquiry). The documents were first ordered to he taken on record and then only their copies were supplied to the applicant. The Inquiry Officer has not indicated that such evidence i.e. additional witnesses/documents, were called for the reason that there was an inherent lacuna or defect in the evidence, which has been produced originally.
14. We fail to understand; rather find unable to persuade ourselves as to why the additional evidence was allowed much earlier than the production of original evidence. It would have otherwise also been infeasible to know any lacuna or defect in the evidence, which was yet to come to light. Therefore the question of invoking the Sub-rule 18 of Rule 9 of the Rules did not arise at all. We can safely concur the submissions of the learned Counsel for the applicant that the Inquiry Officer allowed such evidence only to fill up the gap of evidence, which she could per-calculate to be necessary for proving the charges. This is also otherwise evident from the perusal of this inquiry report since the findings are mainly based on the version of the additional witnesses and the documents produced by them. We also find another startling factor in the instant case that such witnesses have submitted the documents and that too of which they themselves were the authors. If such documents formed part of official records and were to be used to substantiate the charges, the same would have been available and produced by the Disciplinary Authority itself. We also find that the objections of the applicant regarding invoking the Rule 9(18) of the Rules were dealt with in a slipshod manner and came to be thrown overboard without any cogent reasons.
15. We would have out rightly concluded the matter with the aforesaid discussion in favour of the applicant, but we have a reasonable hesitation in not doing so abruptly, since there is a strong objection/hurdle of prejudice of defence, from the side of learned Counsel for the respondent department. While we have taken the judicial notice of the law laid down by the Apex Court that the test of prejudice is required to be met and a departure from the statutory provision can not be made to stand on a higher footing than the prejudice test. Each case is to he examined upon its own context, facts and circumstances. As we have noticed above we were apprised that the applicant was given opportunity to cross-examine the additional witnesses and also the copies of the additional documents were also made available to him. The assertion seems to be attractive but the same is precarious and deceptive. We have already noticed that the findings of Inquiry Officer are primarily based on such additional evidence, which has become available from the additional documents as well as from the version and documents produced by such witnesses.
16. We do not think that in service jurisprudence, there can be any better example of causing of prejudice of defence, than the case in hand where the very charges are proved on the basis of additional evidence, gathered by using the Rule 9(18) of the Rules. Thus it is axiomatic that the defence of the applicant was gravely prejudiced and the findings of Inquiry Officer stand vitiated and can aptly be termed as perverse. Thus the consequential penalty order as well as the appellate order cannot be sustained and deserves to be quashed on this ground alone.
17. We cannot leave the basic concept regarding the initiation of disciplinary case. The Disciplinary Authority on the basis of certain evidences, which may he gathered through preliminary inquiry or otherwise, prepares a charge sheet which contains four Annexure i.e. I, II, III and IV known as Articles of charges, Imputation of charges, List of relied upon documents and list of witnesses to substantiate the charges. The Inquiry Officer is required to arrive at the finding as to whether the charges are proved or not primarily on the basis of admissible evidence collected on the basis of the listed documents and the statement of listed witnesses; defence is also required to submit the list of documents and witnesses with the statement of defence. In other words, he is required to ascertain the truthfulness or otherwise of the imputations alleged against the delinquent employee. Thus there is hardly any place for the material, which is extraneous to the charge sheet. As envisaged in the Rule 9(18) of the rules ibid, specific provision has been made to deal in cases when there is some inherent lacuna or defect in the evidence.
18. The Inquiry Officer has to confine it to the documents and witnesses listed in Annexures III & IV, respectively. His job is not to travel beyond that parameters fixed above by the Disciplinary Authority. The Inquiry Officer is not required to fetch the evidence from here and there or at the sweet will of the Presenting Officer and prove the charges at any pretext. His function is like that of judge who has to discharge his duty without any favour or fear. But in the instant case, taking the entire sequence of facts and circumstances into account, we are find that the Inquiry Officer has not acted in a fair manner and given goodbye to the rules of conducting inquiry proceedings. We are giving his finding with full awareness knowing well that the Inquiry Officer who conducted the inquiry in this case, was holding the post of Commissioner for Departmental Inquiries; supposed to be an expert of inquiry rules.
19. Numerous judgments were sought to be referred on the point of law especially regarding the scope of judicial review, theory of prejudice etc. Some of them we have already referred, but the others we have refrained from mentioning since there was hardly any dispute on the law point. However, since we have reached loan inescapable conclusion that the inquiry proceedings are vitiated and the impugned orders cannot be sustained, we are refraining from delving or debating on other grounds raised in this original application.
20. The upshot of the aforesaid discussion is that there is merit and substance in the original application and the same stands allowed in part. The impugned order dated 31.7.2002 Annexure A/1, is hereby quashed and the applicant shall be entitled for all consequential benefits including release of promotional benefits, if otherwise, eligible. This order shall he implemented within a period of three months from the date of its communication. However, in the facts and circumstances, the parties shall bear their respective costs."
In the Case of V. Abusali v. Commandant, reported in 1993 SCC On Line Ker 289, the Kerala High Court has held in Para 2 to 5 as under:
"2. The grievance in the writ petition was in regard to an order of punishment of removing the writ-petitioner from service Exhibit P4 is the said order, dated 31 May 1990, issued by the Commandant. The writ-petitioner contended before the learned Single Judge that the enquiry officer in this case was a subordinate officer under thede facto complainant, and, therefore, the whole proceedings, were vitiated. In fact, the complaint was made against the writ-petitioner by the Assistant Commandant, and the person appointed to inquire into the matter was an Inspector working under the Assistant Commandant. The enquiry officer found that charge No. 1 was established in part and charge No. 2 in full. The first charge related to unauthorised absence on 2 December 1989 and misbehaviour towards an auto rikshaw driver under the influence of intoxication. This charge was proved partially in so far as unauthorised absence was concerned. The rest of the charge was not proved. The second charge related to the appellant (writ-petitioner) questioning the authority of the Assistant Commandant at 22.15 hours, on 2 December 1989. The learned Single Judge rejected the contention of the writ-petitioner that the enquiry was vitiated because of the fact that the enquiry officer was a subordinate of the complainant himself. It may be noted that the enquiry officer, Sri P.A. Shaji, was an Inspector working under Sri R. Muthuswamy, the Assistant Commandant, who was the complainant. Even so, the learned Single Judge held, that the enquiry was not vitiated. This was because of the fact that there was nothing in the evidence to show that the enquiry officer was influenced by the superior officer, the complainant. The contention for the disciplinary authority that the writ-petitioner ought to have raised the said objection during the enquiry if he felt that there was real likelihood of bias, was accepted by the learned Single Judge. The learned Single Judge observed as follows:
"The counsel for the petitioner contended that there was a likelihood of bias and from the various circumstances the likelihood of bias is to be presumed. If the petitioner was very much aggrieved by the appointment of P.A. Shaji as enquiry officer, he should have raised some objection. But I do not think that there are any circumstances warranting a conclusion that there was a ''real likelihood of bias' in the proceedings of enquiry against the petitioner."
Having thus rejected the contention of the writ petitioner relating to real likelihood of bias, the learned Single Judge, however, felt that there was a defect in the impugned order in the sense that under rule 27(7) of the rules made under the Central Reserve Police Act, 1949, the major penalty of removal Could be imposed only after giving a show-cause notice to the delinquent officer. Inasmuch as the said procedure was not followed, the learned Single Judge quashed the penalty and directed the Commandant to give a fresh notice to the petitioner under rule 27(7) of the Rules made under the Central Reserve Police Force Act, 1949;
3. In so far as the learned Single Judge refused to quash the entire enquiry proceedings on the bias of real likelihood of bias, the writ petitioner has preferred Writ Appeal No. 811 of 1973. In so far as the learned Single Judge quashed the penalty and issued a direction for giving an opportunity to the writ-petitioner in regard to punishment as required under rule 27 of the Rules, the Commandant has come up in appeal in Writ Appeal No. 780 of 1993.
4. We have heard learned counsel on both sides. In our view the learned Single Judge ought to have accepted the contention of the writ-petitioner (appellant in Writ Appeal No. 811 of 1993) that the enquiry officer, being a subordinate officer to the complainant, the entire proceedings relating to enquiry were vitiated. The only ground on which the learned Single Judge rejected the case of the writ-petitioner was that the writ petitioner ought to have raised an objection to the enquiry that the Inspector, who was conducting the enquiry, was a subordinate of the Assistant Commandant, the complainant. In the recent decision of the Supreme Court inRattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School [1993 - I L.L.N. 253], it has been pointed out by the Supreme Court that in cases of bias, all that the Court has to consider is whether there was a real likelihood of bias. The Supreme Court also pointed out that the question of real likelihood of bias should be judged not from the point of view of the Court, but from the point of view of the delinquent officer. The Supreme Court also specifically and expressly laid down that the fact that such an objection was not taken in the enquiry is not a ground for refusing to hold that the enquiry was vitiated. In Para. 12 of the above said decision, the Supreme Court pointed out that the Division Bench of the High Court was in error in not allowing the point to be taken by the petitioner in that case before it. Such a question of prejudice or bias would go to the root of the case and make the entire proceedings a nullity.
5. Following the aforesaid decision of the Supreme Court, we hold that the learned Single Judge was wrong in coming to the conclusion that the writ-petitioner could not be permitted to raise the question of real likelihood of bias, as he did not raise the same during the course of the enquiry proceedings. Admittedly, the Inspector, who conducted the enquiry, was the immediate subordinate of the complainant in the case. The real likelihood of bias is writ large on the face of the enquiry. We, therefore, disagree with the view of the learned Single Judge and hold that the entire enquiry was vitiated. Therefore, Writ Appeal No. 811 of 1993 is allowed and the entire enquiry proceedings, including the penalty, are quashed. This, however, will not preclude the authorities, if they so desire, to have a fresh enquiry conducted in accordance with law by a competent enquiry officer. While doing so, they will, however, consider whether at this distance of time, a fresh enquiry is to be conducted or not."
97. It is relevant to mention here that regarding judicial review under Article 226 Cr.P.C., the following Case Law of Apex Court is relevant:
In the case of State Bank of India Vs. Ram Lal Bhaskar and Another reported in (2011) 10 SCC 249, the Hon'ble Apex Court has observed as under:
"Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct."
The Hon'ble Apex Court in the case of B.C. Chaturvedi v. U.O.I & ors. reported in 1995 (6) SCC 749 again has been pleased to observe that "the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence."
In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994 (3) SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
Not only this the Hon'ble Apex Court has even observed in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan v. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Hon'ble Apex Court has been pleased to observe as under:-
"This Court in Om Kumar and Ors. v. Union of India, [2001] 2 SCC 386 while considering the quantum of punishment/proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to se if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant material and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."
In the case of R.R. Parekh v. High Court of Gujarat reported in (2016) 14 SCC 1, the Hon'ble Apex Court has observed as under:
"20. A disciplinary inquiry, it is well settled, is not governed by the strict rules of evidence which govern a criminal trial. A charge of misconduct in a disciplinary proceeding has to be established on a preponderance of probabilities. The High Court while exercising its power of judicial review under Article 226 has to determine as to whether the charge of misconduct stands established with reference to some legally acceptable evidence. The High Court would not interfere unless the findings are found to be perverse. Unless it is a case of no evidence, the High Court would not exercise its jurisdiction under Article 226. If there is some legal evidence to hold that a charge of misconduct is proved, the sufficiency of the evidence would not fall for re-appreciation or re-evaluation before the High Court. Applying these tests, it is not possible to fault the decision of the Division Bench of the Gujarat High Court on the charge of misconduct. The charge of misconduct was established in Disciplinary Inquiry No. 15 of 2000."
In the case of Allahabad Bank v. Krishna Narayan Tewari reported in (2017) 2 SCC 308, the Hon'ble Apex Court has held in para 3,5,6,7 and 8 as under:
"3. Aggrieved, the respondent preferred a departmental appeal which was dismissed by the appellate authority by its order dated 5-1-2006. The respondent then questioned the said two orders before the High Court in a writ petition which as noticed earlier has been allowed by the High Court in terms of the order impugned in this appeal.
5.On behalf of the appellant Bank it was contended before us that the High Court had exceeded its jurisdiction in reappreciating the evidence and holding the respondent not guilty. It was argued that so long as there was some evidence on which the disciplinary authority could rest its findings, sufficiency or insufficiency of such evidence could not be gone into by a writ court. Alternatively, it was submitted that even if there was any infirmity in the orders passed by the disciplinary authority or the appellate authority, on account of absence or insufficiency of the reasons in support of the findings recorded by them, the proper course for the High Court was to remand the matter back to the appellate authority or the disciplinary authority as the case may be for doing the needful afresh. The High Court could not, on account of absence of reasons or unsatisfactory appraisal of the evidence by them, quash the order of punishment and direct release of the service benefits due to the respondent.
6. On behalf of the respondent it was on the other hand contended that the enquiry conducted against the respondent and the conclusion arrived at by the enquiry officer, disciplinary authority and the appellate authority suffered from fatal defects. Firstly, because the enquiry conducted by the enquiry officer was unfair and had resulted in gross miscarriage of justice on account of the failure of the enquiry officer to provide a reasonable opportunity to the respondent to lead evidence in his defence. In the second place the findings recorded by the enquiry officer and so also the disciplinary authority were unsupported by any evidence whatsoever and were perverse to say the least. In the third place, the orders were unsustainable also for the reason that the same did not disclose due and proper application of mind by the disciplinary authority and the appellate authority. The order passed by the appellate authority was, in particular, bad in law as the same did not examine the material on record independently and had simply relied upon the findings of the disciplinary authority without adverting to the points which the respondent had raised in support of his challenge. It was lastly submitted that the respondent has since superannuated and was a physical wreck having suffered a heart attack and a debilitating stroke which had confined him to bed. Any remand of the proceedings to the appellate authority to pass a fresh order or the disciplinary authority for re-examination and fresh determination of the respondent's guilt would not only be harsh but would tantamount to denial of justice to him. The High Court was in that view justified in taking a pragmatic view of the matter and in directing continuity of service to the respondent and release of all service and retiral benefits to him up to the date of his superannuation.
7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.
8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand."
In the case of Centre for Public Interest Litigation v. Union of India reported in (2012) 3 SCC 1, the Hon'ble Apex Court has held in para 99 as under:
"99 in majority of the judgments relied upon by the learned Attorney General and the learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters."
In the Case of Reliance Telecom Ltd. v. Union of India reported in (2017) 4 SCC 269, the Hon'ble Apex Court has held in para 58 as under :
"58. ............. Notionally adding up or not adding up, we think, is a matter of policy and that too a commercial policy and in a commercial transaction, a decision has to be taken as prudence would command. In this regard, reference to the decision inAsia Foundation & Construction Ltd.v.Trafalgar House Construction (I) Ltd.[Asia Foundation & Construction Ltd.v.Trafalgar House Construction (I) Ltd., (1997) 1 SCC 738] would be apt. In the said case, the Court referred to the authority inTata Cellular[Tata Cellularv.Union of India, (1994) 6 SCC 651] and thereafter opined that though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose. In the instant case, we are unable to perceive any arbitrariness or favouritism or exercise of power for any collateral purpose in NIA. In the absence of the same, to exercise the power of judicial review is not warranted. In the case at hand, we think, it is a prudent decision once there is increase of revenue and expansion of the range of service."
In the Case of Royal Medical Trust and Another Vs.Union of India and Another reported in 2017 SCC OnLine SC 1076, the Hon'ble Apex Court has held in paras 44 to 53 as under:
"44.Dr. Rajiv Dhawan would submit that this Court should not exercise appellate jurisdiction which is fundamentally called an error jurisdiction or rectification of errors. We are absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. InTata Cellularv.Union of India 17, dealing with the concept of Judicial Review, the Court held:
"Lord Scarman in Nottinghamshire County Councilv.Secretary of State for the Environmentproclaimed:
''Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."
Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review(1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal inButcherv.Petrocorp Exploration Ltd.18-3-1991."
Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of thecourt's abilityto quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself."
45.After so stating, reference was made to the law enunciated inChief Constable of the North Wales Policev. Evans 18 wherein, it has been ruled:--
"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
*** Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
46.In the said case, the Court also referred toR.v.Panel on Take-overs and Mergers, ex. P. Datafin plc 19 wherein Sir John Donaldson, M.R. commented:--
"An application for judicial review is not an appeal."
47.The three Judge Bench further held:--
"The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers."
48.The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:
"Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, inR.v.Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
49.Thereafter, the Court referred to the authorities inR.v. Askew 20 andCouncil of Civil Service UnionsvMinister for Civil Service 21 and further expressed:--
"At this stage,The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:
"4.Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd.v.Wednesbury Corpn., per Lord Greene, M.R.)"
50.We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.
51.Discussing at length, the principle of judicial review in many a decision, the two Judge Bench inReliance Telecom Ltd.v.Union of India 22, has held:
"As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers' interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations."
52.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down inTata Cellular(supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.
53. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India v. S.B. Vohra)"
98. On the basis of exposition of law of Hon'ble Supreme Court regarding judicial review by writ Court under Article 226 of the Constitution of India, Case Law relied upon by learned Counsel for the petitioner, does not extend any help to him. These Case Laws relates to the production of all witnesses relied by the management to be produced during the course of inquiry and during the course of the inquiry Inquiry Officer is not supposed to fill up gaps. He should conduct inquiry fairly. These Case Laws are not applicable to the present case because on perusal of inquiry report dated 18.08.2003 submitted by Inquiry Officer, impugned order dated 27.10.2009 passed by Appellate Authority, the punishment order dated 24.11.2003 passed by Disciplinary Authority, it reveal that a fare and impartial inquiry was conducted by the Inquiry Officer. The Inquiry Officer has afforded him full opportunity for cross examination to the witnesses of the management, which were relied upon during the course of inquiry. He participated during the course of inquiry and cross examined the all witnesses produced on behalf of the management. Therefore, there is no violation of natural justice as alleged by the petitioner or petitioner was prejudiced adversely on the basis of bias entertained by the Inquiry Officer.
99. On the basis of above discussions, we find no infirmity in decision making process conducted by the disciplinary authority and impugned judgment 19.05.2014 delivered by the Tribunal. Findings recorded by Disciplinary Authority, Appellate Authority and the Tribunal cannot be termed as perverse or against evidence available on record and law. This writ petition is liable to be dismissed.
100. Accordingly, dismissed.
Order Date :- 23.4.2018 Mustaqeem/Arvind