Central Administrative Tribunal - Delhi
R/O Railway Quarter No.10/9 vs Union Of India And Others on 20 March, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1249/2013 Reserved On:10.03.2013 Pronounced On:24.03.2014 Honble Shri G.George Paracken, Member (J) Honble Shri P.K. Babu, Member (A) Smt. Naseem Nawab Aged about 55 years D/o Shri A.W. Nawab Clerk, Store Branch, Group C, Northern Railway, Baroda House, New Delhi R/o Railway Quarter No.10/9, Railway Colony, Sewa Nagar, New Delhi. Applicant By Advocate: Shri P.S. Khare with Shri H.P. ChaKravorty. Versus Union of India and Others Through 1. The General Manager, Northern Railway, Baroda House, New Delhi. 2. Additional General Railway Manager (General), Northern Railway, Baroda House, New Delhi. 3. Chief Material Manager(s), Northern Railway, Baroda House, New Delhi. 4. Dy. Chief Material Manager, Northern Railway, Baroda House, New Delhi. Respondents By Advocate: Shri R.L. Dhawan. ORDER
Shri G.George Paracken, M(J) The Applicant has filed this Original Application challenging the impugned Annexure A-1 Order No.282/2005/Confdl. dated 05.07.2012 passed by the Disciplinary Authority removing her from service, Annexure A-2 Order No.282/2005/Confdl. dated 28.12.2012 of the Appellate Authority rejecting her appeal and the Annexure A-3 Order No.282/2005/Confdl. dated 07.03.2013 of the Revisionary Authority rejecting her Revision Petition.
2. The brief facts of the case are that, vide Memorandum No.282/2005/CONFDL. dated 10.03.2005, the Disciplinary Authority proposed to hold an enquiry against the Applicant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The substance of imputations of misconduct and misbehaviour in respect of which enquiry was proposed to be held, as set out in the enclosed statement of Articles of Charges, were as under:-
Smt. Naseem Nawab, Clerk, Stores Branch, Head Quarter Office, Baroda House, New Delhi while working in Receipt Section during period 2003-04 and 2004-05 was found to have committed serious irregularities in as much as:-
(i) She is a habitual absentee and do not take prior sanction of leave.
(ii) She remained unauthorisedly absent from office since May, 2003 and failed to attend office in spite of repeated reminders.
(iii) She has neglected her duties and shown total disinterest to work for the administration.
By this act of omission and commission Smt. Naseem Nawab, Clerk, Stores Branch acted in a manner unbecoming of a Railway Servant and thus violated Rule 3.1(i), (ii) and (iii) of Railway Service Conduct Rules, 1966.
3. The statement of imputation of misconduct and misbehaviour on the basis of which each Articles of Charges as enclosed with the Memorandum dated 10.03.2005 was as under:-
1. Based on poor record of presence of Smt. Naseem Nawab, in office during January, 2000 to 14th February, 2005, it was ordered to issue SF-5 to her for neglecting her duties as well as for unauthorized absence from duty.
2. The following record of her attendance shows that she is a habitual absentee with total disregard to the administrative norms. The following statement also shows that she has not bothered to take prior sanction before proceeding on leave.
Year Total Days Sat. Sun/G.Holidays (Days) Working Days Present (Days) Absent (Days) 2000 366 120 246 159 83 2001 365 121 244 133 121 2002 365 116 249 88 200 Upto April 2003 120 41 79 11 85 Note: form May, 2003 she is absent till today.
3. Repeated counseling of this employee has not resulted in any improvement in her attitude and availability in office. It is also seen that whenever she applies for leave, her leave application does not bear her address.
Thus by the above acts of omission and commission, Smt. Naseem Nawab, while working as Clerk in Receipt Section, failed to maintain absolute integrity, exhibited lack of devotion towards her duties and acted in a manner unbecoming of a Railway Servant, thereby contravening Rule 3.1(i), (ii) and (iii) of Railway Service Conduct Rule, 1966.
4. The list of relied upon documents on the basis of which Article of Charges were substantiated were as under:-
1. Copy of leave application of Smt. Naseem Nawab submitted to this office on 21.08.2003.
2. Copy of leave application of Smt. Naseem Nawab submitted to this office on 20.08.2003.
3. Copy of this office letter No.92-S/61/32/LEAVE/PART-IV/G.Section dated 28.08.2003 addressed to Smt. Naseem Nawab.
4. Copy of this office letter No.92-S/61/32/LEAVE/PART-IV/G.Section dated 06.11.2003 addressed to Smt. Naseem Nawab.
5. Copy of this office letter No.92-S/61/32/LEAVE/PART-IV/G.Section dated 20/24.08.2003 addressed to Smt. Naseem Nawab.
6. Attendance record of Smt. Naseem Nawab for the period January, 2000 to 14th February, 2005.
5. However, the list of witnesses by whom the aforesaid Articles of Charges were proposed to be sustained was Nil.
6. As the aforesaid Memorandum sent by Registered Post could not be delivered to the Applicant, the Respondents have deputed a Senior Clerk to deliver the same to her but since her house was found locked. Therefore, it could not be served. The Respondents again tried to serve the Memorandum on the Applicant but since she was not available on the last given address, again it could not be served. Thereafter, the Respondents issued public notice in leading News Papers. Finally, the Inquiry Officer has decided to hold the enquiry ex-parte. According to the Enquiry Officers report, the Enquiry Officer held the first sitting of the enquiry on 22.11.2005 but Applicant failed to attend the same. She had also not sent any intimation to the Enquiry Officer. Second sitting was fixed on 24.1.2006. On that date also, the Applicant was absent. Thereafter, notice was pasted on her last given residential address. The third enquiry sitting was fixed on 12.04.2006. Again, the Applicant was absent. Another opportunity was given to the Applicant to attend the enquiry on 22.08.2006. Again, she was absent. The last opportunity was given to her after publishing the notice in the News Papers. But that time also the Applicant failed to attend the enquiry proceedings. Thereafter, the Inquiry Officer submitted his report dated 14.05.2007 in which he gave his findings that all the charges framed against the Applicant have been proved and he submitted his report on 14.05.2007. The said report reads as under:-
(1) Preamble:
In terms of Rule 9(2) of RS(D&A) Rule 1968, the undersigned Ramesh Kumar, SMM/EP was nominated as enquiry officer vide SF-7 No.282/2005/Confdl. dated 20.09.2005 issued by DA (Secy. To COS) to enquire into the charges framed against Smt. Naseem Nawab, Clerk Stores Branch. Copy of SF-5 was sent to her registered address which was received undelivered from the postal authority. Hence the copy of SF-5 was pasted at her residential address on dated 30.08.2005.
(2) At the out set of the enquiry the charges were to be presented and documents listed in Annexure-III were to be exhibited as such first sitting of the enquiry was fixed for 22.11.2005 but Smt. Naseem Nawab, did not attend the enquiry nor any intimation received from her side.
(3) IInd sitting of the enquiry was then fixed for 24.01.2006 but even on this date Smt. Naseem Nawab, did not attend the enquiry. Copy of notice was got pasted on her last given residential address.
(4) Third sitting of the enquiry was fixed for 12.04.2006 with clear indication that in case Smt. Naseem Nawab fails to attend the enquiry the case shall be processed on the basis of the material available on the record but even on this date she did not attend the enquiry.
(5) Another opportunity was also given to Smt. Naseem Nawab to attend the enquiry on 22.08.2006, but she did not attend the enquiry in spite of the fact that clear indication was given that ex-parte proceedings will be initiated in case she fails to avail this opportunity. But even on this date she did not attend the enquiry.
(6) As last opportunity notice was published in the news papers (copy placed on Sl.No.25) informing Smt. Naseem Nawab through this notice to attend the enquiry. But she failed to avail this opportunity.
Keeping in view above, the undersigned has no other option but to process the enquiry proceedings ex-parte. Hence the report is prepared on the basis of facts available on the record of the enquiry file.
Discussion of evidence:
The charges against Smt. Naseem Nawan, Clerk, Stores Branch, is as follows Annexure-I:
(1) She is habitual absentee and dont take prior sanction of leave.
(2) She remained unauthorized absent from office since May, 2003 and failed to attend office in spite of repeated reminders.
(3) She has neglected her duties and shown total disinterest to work for the administration.
Perusal of the application dated 21.08.2003, shows that Smt. Naseem Nawab, has requested to grant leave from 1.8.2003 to 31.8.2003. She did not mention her address on this application. The leave applied for was rejected by CA and Smt. Naseem Nawab was advised accordingly with the direction that she should report to this office within seven days vide letter No.92-S/61/32/Leave. Pt.-IV/Genl. Section dated 6.11.2003. Again she sent an application dated 28.4.2004 that her own son was sick and under medical treatment, but no leave was sent for. This application was also rejected by CA.
It is also seen that she is absconding from duty from May 2003 without any prior sanctioned of leave, despite repeated reminders/ample opportunity given to her.
Perusal of the report shows that in the year 2000 she remain absent for 83 days in year 2001, 121 days in year 2002, 200 days and 85 days up to April, 2003 and from May 2003 till date she is unauthorized absent.
Conclusion:
Since Smt. Naseem Nawab has failed to participate in enquiry against her, undersigned is left with no other option but to proceed ex-parte. Based upon the relied upon documents listed in Annexure-III of charge sheet, all the charges leveled against Smt. Naseem Nawab listed in Annexure-I of charge sheet are proved.
7. The Disciplinary Authority sent a copy of the said report to the Applicant vide letter dated 21.5.2007 asking her to make representation, if any, within 10 days of the receipt of the same. She was also informed that if no representation was received by the said date, it will be presumed that she had nothing to say against the enquiry report and further action will be taken in the matter. The Applicant did not acknowledge the receipt of the aforesaid report. She also did not send any representation against the report of the Inquiry Officer. Finally, the Disciplinary Authority passed the impugned Annexure A-1 Order No.282/2005/Confdl. dated 05.07.2012 removing her from service. The relevant part of the said order reads as under:-
That you are a habitual absentee is evident from the incidence of your going on long authorized absence First from 12.6.1986; Second from May 2003 and Third from 30.07.2010.
For verification of above facts, scrutiny of record revealed that you were removed from service w.e.f. 27.05.1989 vide letter No.92-S/61/32/SSG dated 27.05.1989 due to long unauthorized absence and were reinstated from 14.10.1992 vide Dy.CPO/HQs letter No.724-E/1532/Eiiia dated 12.10.1992. You were again removed from service for the second time, this time too on account of prolonged unauthorized absence, w.e.f. 01.08.2003. You were reinstated w.e.f. 06.11.2008 vide Dy.CMM/HQs letter No.282/2005/Confidential dated 06.11.2008 for the sake of giving you another chance to mend your ways, on findings your situation having improved. But it cannot be glossed over that despite being reinstated vide letter of 06.11.2008, you, interestingly, chose to join duty on 16.3.2009 which throws ample light on the level of your sincerity and loyalty towards your employer, the Indian Railways or your own employment/service.
The Enquiry Report clearly indicates that while you repeatedly failed to appear for enquiry and failed to submit requisite documents, except medical certificate of July, 2011 and August, 2011, the Enquiry Officer generously refixed dates of hearing (after first hearing of 03.11.2009) on 28.05.2010, 11.06.2010, 05.09.2011, 26.09.2011, 24.10.2011 and finally on 08.12.2011. This step of Enquiry Officer is perceived by me as a judicious and considerate step taken out to genuine concern for meeting the ends of natural justice. Still you did not cooperate and created a situation with your absence from proceedings which impelled the Enquiry Officer to go in for concluding the enquiry by proceeding ex-parte, proving the charges beyond doubt.
As clear from the contents of foregoing paragraphs and as also summed up by Secy. to COS in the concerned file, despite your removal from service twice and reinstatement for as many time, your attitude remained the same, i.e., instead of showing regrets for your conduct in the past or devotion to duty, you once again repeated the incidence of going on unauthorized absence since 30.07.2010.
In addition to other modes of communication like letters, reminders, NOTICE in the National Dailies (English) viz., Hindustan Times, Times of India and the Indian Express of 26.11.2011 and National Daily (Hindi) viz., The Nav Bharat Times dated 27.11.2011 was published for your information. Still you did not come to report for participating in the Enquiry proceedings.
In view of foregoing facts, the charges leveled, defence documents submitted, and charges proven by the Enquiry Officer, I hold you guilty of unauthorized absence from 30.07.2010 and impose the penalty of Removal from Railway Service with immediate effect.
Under Rule 18 of the Railway Servant (Discipline and Appeal) Rules, 1968, an appeal against the orders lies with the CMM/S, N. Rly. Baroda House, New Delhi, provided:-
The Appeal is submitted within 45 days from the date you receive the orders.
The Appeal does not contain any improper or disrespectful language.
Please acknowledge the receipt.
8. Thereafter, applicant made an appeal against the aforesaid order on 17.7.2012. She has stated that she had sent an application on 21.08.2003 for granting her leave from 01.08.2003 to 31.08.2003. Again, she has made another representation on 28.04.2003 stating that Applicants son was under medical treatment and, therefore, she was unable to be present in the office. She has also stated that Applicants absence was not willful but it was for compelling reasons. She has also stated that the Inquiry Officer has not conducted the enquiry in accordance with the rules and in keeping in view of the principles of natural justice. He failed to adduce any evidence against her. No witness was examined. The relied upon documents were never proved during the enquiry. He has also failed to consider her letters dated 21.08.2003 and 24.08.2003 along with medical certificates send by her. She has again reiterated that in the year 2003, her elder son was ill due to mental problem and his case was examined by the neuro psychiatrist and diagnosed as a case of chronic schizophrenia. As a result, she has also become sick and suffered from anxiety neurosis. She had approached a number of hospitals for treatment of her son including Sir Ganga Ram Hospital but there was no use. When the condition of her son became so serious, she was left with no option but to take him to Green View Medical Centre, Bangalore. He is still under medical observation which requires utmost personal attention. Because of the serious condition of her son, she could not perform her duties and she informed the Respondents accordingly and requested them to grant her extraordinary leave. For the said purpose, she has also made representation along with medical certificates. She has also stated that during her absence period, she never received any letter/notice/ order from the Inquiry Officer as well as from the Disciplinary Authority. Therefore, the whole action of the Disciplinary Authority removing her from service is illegal, arbitrary and against the principles of natural justice.
9. However, the Appellate Authority, vide its order dated 28.12.2012, rejected her appeal and justified the orders of the Disciplinary Authority. The relevant part of the order reads as under:-
Based on the enquiry report dated 14.03.2007 disciplinary authority has ordered vide Confdl letter No.282/2005/Confdl. dated 29.02.2008 removed from service. Based on her appeal and personal hearing, penalty of Removal from Service was set aside as per Confdl letter dated 06.11.2008 to give her a chance to present her case and Shri Ramesh Kumar, SMM/NR was again ordered to act as an enquiry officer. Shri Ramesh Kumar, SMM/NR has submitted his enquiry report dated 16.12.2011 and given her several chances to come and participate and present her case excepting one occasion she had failed to attend any of the enquiries conducted by him and has finally concluded that the charges leveled against Smt. Naseem Nawab are proved beyond any reasonable doubt. Based on the above enquiry report, Disciplinary Authority Dy.CMM/HQ Shri Jagjit Singh had issued a speaking order dated 05.07.2012 and imposed a penalty of Removal of Service with immediate effect.
As requested in her appeal dated 17.07.2012 she was granted personal hearing. She appeared on scheduled date of 08.11.2012 for personal hearing before me, i.e., Appellate Authority. She appealed that she has lost both her parents and she is orphan now. She has two sons one of the son is suffering from prolonged anxiety neurosis and other son is working somewhere. Her husband has also deserted her. She stated that it was not possible to attend office leaving her younger son alone and maintained that absence was not willful and requested for sympathetic consideration. What she narrated appears tragic indeed.
Presently, she has a Railway house allotted in her name in Sewa Nagar, New Delhi. It is observed that she has been absenting without pay for long periods quite often. Prior to this also, she has been removed for unauthorized absence vide order 92-S/61/32/SSG dated 27/05/1989 and reinstated after reducing the penalty of withholding of increment for one year with cumulative effect vide Dy.CPO/HQ letter No.7224-E/15321/Eiiia dated 12.10.1992. This also could not help improve her and later also she continued to remain absent on leave without pay on several occasions.
She was appointed on compassionate ground in the year 1982 and in spite of such a long service tenure, she has effectively put in hardly few years of service. She is not getting any salary since considerable long period. Probably the only advantage she has of a Railway House for which also eviction order dated 06.12.2012 has been issued under Public Premises (Eviction of Unauthorised Occupants) Act of 1971.
On going through all the facts brought out before me, I conclude that continuation of her in service is not expected to improve her or benefit the railways in any manner. Though, her case needs some sympathetic consideration. She is about to retire in 2016 reducing the penalty of removal from service to compulsory retirement may not be justified for Railways seeing her service track record and may also not give her much benefit because of actually less service rendered. Considering all above and having applied my mind carefully, I feel that penalty of removal from service imposed by Disciplinary Authority is justified.
Revision petition against the above order lies with AGM/N.Rly., Baroda House, New Delhi provided appeal for revision is submitted within 45 days from the date of receipt of order and the application does not contain any improper or disrespectful language.
10. Applicant made a Revision Petition against the order of the Appellate Authority. However, the Revisionary Authority, vide its letter No.282/2005/Confdl. dated 07.03.2013 rejected the same for the following reasons:-
1. That proper procedure has been followed in serving the charge sheet and also in holding the enquiry. This is clear from the notices sent to the official residence allotted to you, notices published in newspapers and also from the fact that notice has been pasted at the official residence allotted to you. Thus adequate notice was served. You failed to attend the inquiry which was then completed ex-parte, again after giving adequate notice.
2. The charges of long period of unauthorized absence have been amply proved form the official attendance records. Although you have tried to justify your very long unauthorized absence running into several years, claiming that your son was suffering from depression, yet another careful consideration of the facts on record, Revisionary Authority is of the view that this illness (namely, depression) does not form sufficient justification for willfully absconding from duty for a prolonged period of several years. You also willfully evaded taking part in the inquiry by not receiving the notices, not responding to notices printed in newspapers and even evading the notices pasted at your residence. Thus evading the inquiry which was initiated, you now cannot claim that you have not been given opportunity to he heard.
3. In view of above, the revision petition is disposed off, by the Revisionary Authority, i.e., Addl. GM/NR with an order that the penalty awarded and upheld in appeal, under the D&AR rules, i.e., removal from service stands.
11. The Applicant has challenged the aforesaid orders in this Original Application stating that her appointment was on compassionate ground on the death of her mother who was medically invalidated. She died in April, 1985. Her sudden death has caused great mental depression to her and as a result she has been suffering from anxiety neurosis. Therefore, she was under the long treatment at Bombay. However, when she became normal she performed her duties to the best of satisfaction of her superiors. Later on, her husband deserted her leaving two children with her. As a result, she remained on leave for 2 years after proper intimation to the Respondents. In such a miserable condition she had to hire a maid servant to look after the children. She has also reiterated her submissions made in the appeal that the Respondents have not followed the prescribed procedure while the Inquiry Officer has passed the ex-parte order against Applicant. She has also stated that her absence from duty was not a misconduct but it was due to compelling reasons as intimated to the Respondents.
12. The Respondents have filed their reply stating that the Inquiry Officer held the ex-parte enquiry under Rules 9 (23) of the Railway Servants (Discipline & Appeal) Rules, 1968 and submitted his report on 14.05.2007. The Inquiry Officer rendered his findings that all the charges framed against the Applicant having been proved. Thereafter, after following the due process, the Disciplinary Authority accepting the findings of the Inquiry Officer and considering the gravity of the charges, imposed the penalty of removal from service upon her vide order dated 29.02.2008. The Appellate Authority, after considering her appeal dated 07.04.208 and after giving her personal hearing on 01.10.2008, decided to give further opportunity to her to defend herself of the charges and accordingly, set aside the orders passed by the Disciplinary Authority and remanded the case to Inquiry Officer for fresh enquiry, vide his order dated 06.11.2008. In pursuance of the aforesaid order passed of the Appellate Authority, Applicant joined duty on 16.3.2009 but she again absented herself from duty w.e.f. 30.07.2010. They have also stated that the Inquiry Officer used all means of communications and asked the Applicant to appear before him to present her evidence. The Applicant appeared before the Inquiry Officer on 03.11.2009 and denied the charges. She sought sometime to submit documents in support of her submissions. She had also sought permission to engage a defence helper. Both her requests were orally allowed by the Inquiry Officer on the first date of enquiry itself, i.e., on 03.11.2009. However, from the second date of the enquiry itself, she failed to appear in the enquiry proceedings. The Inquiry Officer gave her the last opportunity by publishing the notice through the local News Papers and directed her to appear before him on 08.12.2011. But again the Applicant failed to appear before the Inquiry Officer and to defend her case. As she was again on unauthorized absence from duty from 30.07.2010, it was not possible for the Inquiry officer to contact her and persuade her to participate in the enquiry. In the said circumstances, the Inquiry Officer held the enquiry in terms of Rule 9(23) of the Railway Servants (Discipline & Appeal) Rules, 1968 and submitted his report on 16.12.2011 wherein he gave the findings that the charges against the Applicant have been proved. A copy of the said report was also supplied to the Applicant to make representation, if any. The Applicant submitted representation on 15.01.2012 that she was unable to join duties due to sons illness and self sickness. Thereafter, the Respondents, vide their letter dated 31.01.2012, asked the Applicant to submit the documents in support of her medical treatment and advice of the doctors for rest. They have also issued reminders on 24.02.2012 and 24.04.2012. However, Applicant neither replied nor reported for duty. It is in the above background that the Disciplinary Authority accepted the report of the Inquiry Officer and passed order dated 05.07.2012 imposing penalty of removal upon the Applicant. The Appellate Authority has carefully considered her appeal and passed the reasoned order upholding the order of the Disciplinary Authority removing the Applicant from service. The Revision Petition was also considered by the competent authority but it was rejected.
13. Further, they have stated that the Applicant, during her service, she had absented herself from duty for 7346 days, i.e., 20 years, one month and 16 days. The period spent on duty was only 9 years, 9 months and 22 days.
14. We have heard the learned counsel for the Applicant Shri P.S. Khare with Shri H.P. Chakravorty and the learned counsel for the Respondents Shri R.L. Dhawan. There is no doubt that unauthorized absence from duty is a very serious misconduct and if the same is proved, the delinquent employee can be even dismissed from service. At the same time, no such punishment can be imposed upon any delinquent employee unless the charge of unauthorized absence is proved against the Applicant in a duly held enquiry proceedings. In case the delinquent employee, in spite of notice, refuses to attend the enquiry proceedings, the Enquiry Officer can also proceed against such employee ex-parte as authorized by Rule 9 (23) of the Railway Servants (Discipline and Appeal) Rules, 1968 which reads as under:-
(23) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.
But again the Enquiry Officer is required to follow the prescribed procedure bring the evidence against the employee on record. Just because the employee has not been attending the enquiry proceedings, the Enquiry Officer cannot blindly say that the charge of unauthorized absence has been proved against such delinquent employee. The Respondents-Railways themselves, vide their letter No.E(D&A) 90 RG 6-34 dated 18.04.1990, have issued instructions as to how ex-parte enquiry has to be held. The relevant part of the said letter reads as under:-
4. It is now clarified that the provisions of Rule 14(ii) of the RS(D&A) Rules may not be resorted to where it becomes necessary to proceed in an ex-parte manner against charged Railway Servants who are absconding or are on unauthorized absence and the charge sheets are returned undelivered. In such cases, while conducting the ex-parte proceedings, the entire gamut of the enquiry has to be gone through. The notice to witnesses should be sent, the documentary evidences should be produced and marked, the Presenting Officer if one is appointed should examine the prosecution witnesses and the enquiring authority may put such questions to the witness as it thinks to be fit. The enquiring authority should record the reasons why he is proceeding ex-parte and what steps he had taken to ask the accused official to take part in the enquiry and avail of all the opportunities available under the provisions of Rule 9 of the RS(D&A) Rules. In such a case, the details of what has transpired in his absence, including depositions, should be furnished to the accused officer. During the course of enquiry, the accused is free to put in appearance and participate in the inquiry. If the accused appears in the enquiry when some business has already been transacted, it is not necessary to transact the same business again unless the accused official is able to give justification to the satisfaction of the Inquiry Officer for not participating in the enquiry earlier. The competent disciplinary authority may thereafter proceed to pass final orders after following the prescribed procedures.
15. The Apex Court in the case of State of U.P. and Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 held that even in ex-parte proceedings, the evidence available has to be examined. The relevant part of the said judgment is reproduced as under:-
..Even in such circumstances it is incumbent on the enquiry 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 enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry 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.
16. Further, it is seen that in this case, the Disciplinary Authority has relied upon six documents to sustain the charges leveled against the Applicant. However, there was not a single witness to prove those documents. The Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..
17. In view of the above facts and circumstances of the case, we are of the considered view that the enquiry proceedings have not been conducted in accordance with the rules and in consonance with the principles of natural justice. No evidence was brought on record and, therefore, the Inquiry Officers report is nothing but a perverse one. The Disciplinary Authority and Appellate Authority have not cared to look whether the enquiry was held in accordance with the rules. We in the above facts and circumstances of the case quash and set aside the Enquiry Officers report and the orders of the Disciplinary Authority dated 07.07.2012, Appellate Authority dated 28.12.2012 and the Revisionary Authority dated 07.03.2013. Consequently, we direct the Respondents to reinstate the Applicant in service forthwith. The period of her absence from duty shall be treated as leave of the kinds due including extraordinary leave. However, we also make it clear that the Applicant will not be entitled for any back wages during the period from the date of her removal from service to the date of her reinstatement in service. The Respondents shall also pass necessary orders in compliance of the aforesaid directions within a period of two months from the date of receipt of a copy of this order.
18. There shall be no order as to costs.
(P.K. BASU) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh