Gauhati High Court
Jagadish Chandra Mandloi vs Oil And Natural Gas Commission And Two ... on 5 April, 1995
Equivalent citations: (1996)IIILLJ740GAU
JUDGMENT J.N. Sarma, J.
1. Destiny has played a cruel joke with this petitioner. First he lost his wife either she was murdered or committed suicide as claimed by the petitioner, as a fall out of it, the petitioner has lost his job and it is this loss of job which is challenged in this writ application.
2. The brief facts are as follows:
The petitioner is a Bachelor of Engineering. The petitioner in 1975 was appointed in the post of Technical Assistant Grade-I (Civil) under the O.N.G.C. in 1979 the petitioner was promoted to the post of Asstt. Executive Engineer. It is claimed by the petitioner that on April 16, 1979 his wife committed suicide. On May 28, 1979 the petitioner was arrested on suspicions and subsequently released on bail. On May 3, 1979 the petitioner was placed under suspension with effect from April 28, 1979 by the Regional Director, O.N.G.C., Nazira. The suspension was later on ratified by the higher authority. On April 3, 1984, the suspension was revoked and the suspension period was regularised but the petitioner's service was terminated under Regulation 24 of the O.N.G.C. (Terms and Conditions of Appointment and Service) Regulations, 1975. The petitioner filed Civil Rule being Civil Rule No. 283/84 before this court on July 17, 1986. The High Court quashed the order of termination. However gave certain directions to the O.N.G.C. On 2 January 19, 1988 a Criminal Case which was initiated as against the petitioner being Session Case No. 11 (s-s) / 87 under Section 302 and 201 I.P.C. and acquitted the petitioner and thereafter/the petitioner requested the authority to reinstate in service as he was acquitted in the case but the same was not done by the respondents. The respondents initiated an enquiry against the petitioner on 3 (three) charges. The charges are as follows:
(i) He gave false information to the police to the effect that his wife had committed suicide.
(ii) HE has caused death of his wife by assaulting her.
(iii) His conduct is not above board as per judgment of Hon'ble Sessions Judge, Sibsagar.
3. One Sri S.P. Basu was appointed as the Enquiry Officer and the petitioner submitted his reply to the charges. An enquiry report vide Annexure-'E' was submitted on September 23, 1989 by the Enquiry Officer. For better appreciation that enquiry report in its entirety is quoted below:
"Sub: Report of Enquiry against Shri J.C. Mondoloi, A.E.E. (Civil) US, ERBC, Nazira.
1. In pursuance of Office Order No. 81 /79-D and A dated July 6, 1988, Member (Tech.) Tel-Bhavan, Deharadun, UP, undersigned has been appointed as the sole Inquiry Officer to enquire into the charges levelled against Shri J.C. Mondoloi, A.E.E. (Civil) US, ONGC, Nazira as described vide Memorandum No. 8/1/79-D & A, dated July 9, 1988 of Member (Tech).
2. It is on the basis of the same order Member (Tech.) has also appointed Shri G. Mohan, Dy. Director (P&A), O.N.G.C. Nazira as Presenting Officer for the enquiry.
3. For better conduct of the case, there is need for proper dialogue and as such the Presenting Officer vide this office letter No. DVP/CE(C)31/88-89/6693, dated November 7, 1988 was requested to be present on November 16, 1988 at 10.00 A.M. in the Chamber of Chief Engineer (Civil) Dhansiri Valley Project, Bishnu Bhavan, Jorhat to discuss and formulate the modalities to conduct the enquiry.
4. The Presending Officer could not turn up on November 16, 1988 due to some unavoidable reasons for which another date at 10.00 A.M. on February 14, 1989 was fixed in the Chamber of Chief Engineer (Civil), at Raj and Company Building, Jorhat and intimation sent to him vide letter No. DVP/CE(C)/ 31/88-89/124, dated February 1, 1989.
5. In this case also the Presenting Officer could not make himself available before the Inquiry Officer for which a definite date for enquiry at 10.00 A.M. on March 8, 1989 was fixed in the Chamber of Chief Engineer (Civil), at Raj & Co. Building, JPR Road, Jorhat and necessary intimation were sent vide this office letter of even No. 153, dated February 14, 1989.
6. The Presenting Officer did not turn-up on March 8, 1989 for which another date for enquiry was fixed at 10.00 A.M. on March 30, 1989 in the chamber of Chief Engineer (Civil), Raj & Co. Building, JPR Road, Jorhat and necessary intimation sent to the Presenting Officer vide this office letter of even No. 249 dated March 8, 1989 as well as the accused.
7. Intimation was also sent to Shri J.C. Mondoloi, vide this Memo of even No. 123, dated February 1, 1989 to be present for hearing on February 14, 1989 against which Shri Mondoloi attended the enquiry at 03.00 P.M. instead of 10.00 A.M. for which, enquiry could not be conducted and Shri Mondoloi was informed accordingly vide this office letter o even No. 149, dated February 14, 1989 to be present at 10.00 A.M. on March 8, 1988.
8. Shri Mondoloi appeared before the Inquiry Officer on March 8, 1989. But in absence of the Presenting Officer Shri Mondoloi was asked to intimate the Enquiry Officer in case he desires to take assistance of any of the commission's employee to assist him at the time of oral enquiry. Intimation to this effect was sent to him vide this office letter of even No. 149 dated February 14, 1989 which he did not reply. As such another date had been fixed at 10.00 A.M. of March 30, 1989 and letter of intimation to this effect of even No. 259, dated March 8, 1989 handed over to Shri Mondoloi in the Chamber of Chief Engineer (Civil), Raj & Co. Building, JPR Road, Jorhat on March 8, 1989.
9. However, Shri Mondoloi and the Presenting Officer turned up to attend the enquiry on March 30, 1989 and the copy of the proceedings of the enquiry dated March 30, 1989 duly signed by Shri Mondoloi, the Presenting Officer and the Inquiry Officer is attached which is self-explanatory.
10. Shri. J.C. Mondoloi, insisted upon granting him sufficient time to give in writing whether he desires to take the help of any of the Commission's employee to defend his case at the time of oral enquiry. And, accordingly in the spirit of Natural Justice it was agreed to fix on April 25, 1989 as a next date of hearing.
11. But Shri. J.C. Mondoloi did not turn-up for attending the enquiry on April 25, 1989, May 18,1989, June 1, 1989, June 20, 1989, August 23, 1989and September 19, 1989. These different dates will substantiate that reasonable opportunity was afforded to him but he has not availed of for the reasons known 5 to him.
12. The charges framed against Shri. J.C. Mondoloi AED(C) US, ONGC, Nazira are as follows:
(i) He gave false information to the Police to the effect that his wife had committed suicide.
(ii) He caused death of his wife by assaulting her.
(iii) His conduct is not above board as per judgment of honourable Session Judge, Sibsagar.
13. All the above charges are denied by him vide his statement of defence dated August 20, 1988, addressed to Member (Tech). Dehradun. In order to find out any clue on the above charges it is necessary to examine the accused by the Presenting Officer. But because of absence of the accused the same could not be explicitly followed.
14. The Controlling Officer of shri J. C. Mondoloi, i.e. Supdg. Engineer (Civil), Nazira informed that shri Mondoloi is not available in his Head Qtrs. at Nazira and his whereabout is also not known. Accordingly Telegraphic message followed by Registered letters addressed to him in his Home Town and local address were sent to him.
Registered letter sent to his local address has also been returned by the Postal authority with the remark "Addressee left", which is attached herewith in original. Similarly, other Registered letter sent to him to his Home Town has also been returned by the Postal authority and received on September 22, 1989. All these (two) letters in sealed envelopes are attached herewith in original.
15. However, in the concluding para of his statement of defence dated August 20, 1989, he had written to be heard in person and his present evasion of the enquiry for any reasons put forth by him is a matter to be reckoned with.
16. Scope of doubt left only in one count that shri. J.C. Mondoloi, does not want to take help of any of the Commission's employee to defend the case at the time of oral enquiry as he has been trying to avoid this enquiry or come forward to defend his case himself, definitely with the apprehension in his mind that some clue on material points may come up in the case.
After a dispassionate consideration of the entire gamut of the case, undersigned comes to the following conclusion.
Conclusion:
Notwithstanding several opportunities given to Shri J.C. Mondoloi, he has deliberately avoided the enquiry thereby making himself liable for disciplinary action under ONGC CDA Regulation in force and it may further be concluded that Shri J.C. Mondoloi has nothing suitable to offer in his defence in reply to charges levelled against him vide Memorandum No. 8/1/ 79-D&A, dated July 9, 1988 of Member (Tech.) for which the case deserves ex parte decision to be taken by the disciplinary authority on the merit of the case.
4. Thereafter, vide Annexure-"F', the following Order was passed :-
"No. 8/1/79-D&A-Vol. II dated March 17, 1991 Memorandum
1. The undersigned enclosing a copy of the inquiry report submitted by the Officer appointed to enquire into the charges against Shri. J.C. Mondoloi, AEE(C).
2. On a careful consideration of the Inquiry Report aforesaid, the undersigned agrees with the findings of the Inquiry Officer. Despite Ample opportunity Shri Mondoloi has failed to attend the enquiry. He was accorded permission to leave the station from September 8, 1988 to September 17, 1988 but he did not turn up thereafter. He has thus violated the instructions issued to him. It is also seen that he has nothing to say in respect of charges levelled against him. The undersigned has therefore provisionally come to the conclusion that Shri. J.C. Mondoloi, AEE(C) is not a fit person to be retained in service and so the undersigned proposes to impose on him the penalty of 'removal' from service.
3. Shri. J.C. Mondoloi is hereby given an opportunity of making representation on the penalty proposed but only on the adduced evidence. Any representation which he may wish to make on the penalty imposed will be considered by the undersigned. Such representation, if any, should be in writing and submitted so as to reach the undersigned not later than fifteen days from the date of receipt of the Memorandum by Shri J.C. Mondoloi.
4. The receipt of this memorandum should be acknowledged.
"(S.K. Manglik) Member (Technical)"
5. A reply was sent by the petitioner vide Annexure 'G' which is quoted below:
"To, The Honourable Member (Tech), Oil and Natural Gas Commission, Tel Bhavan, Dchradun.
(Through Proper Channel).
Sub: Representation of Shri J.C. Mandoloi, AEE (Civil) (under suspension) of ERBC, Nazira.
Respected Sir,
1. Kindly refer to your Memorandum No. 8/1/79-D&A-VOL-II/549 dated March 17, 1991 which was sent to me by the Discipline and Appeal Section, ONGC, Nazira on June 10, 1991 after a gap of over 3 months and was received by me on June 28, 1991. Photocopies of Memorandum and the envelope in which it was sent are enclosed.
2. The report of the enquiry officer is dated September 23, 1989 whereas the aforesaid Memorandum is dated March 17, 1991. There is gap of nearly 1-1/2 years between the enquiry report and the memorandum in question.
3. I do not want to say anything on the above two points but certainly your kind honour will appreciate how much time it has taken just for sending a communication to me. Is it not direct harassment to a suspended employee?
4. Coming to the enquiry report dated September 23, 1989 of Shri S.P. Basu, CE (Civil), based on which your kind honour has provisionally come to the conclusion of imposing extreme penalty on me, I am to state as under:-
(a) Para 1, 2, 3, do not call for any reply.
(b) Para 4, 5 and 6 clearly show that the Presenting Officer had not attended on all the dates fixed for the enquiry to present the case.
(c) Para 7 states that I was present on the date fixed on December 14, 1989 whereas it is silent about the Presenting Officer. In fact he was absent on this date also.
(d) Para 8 is correct. It may please be noted that I was present before the enquiry officer on March 8, 1989 but on this date also the Presenting Officer was absent.
(e) Paras 9 and 10 are correct.
(f) So far as para 11 is concerned, I am to say that I could not attend the dates mentioned therein because I felt harassed and was so much depressed due to all these long sufferings that I lost hope that his enquiry will give me justice. I felt that this is being done just to harass me. It may also please be noted that the Enquiry Officer has not mentioned in this para whether the Presenting Officer was at all present on these dates or not. In fact he was also absent on these dates and the Enquiry Officer has deliberately evaded this fact for the reasons best known to him.
(g) Para 12 relates to the charges levelled against me. Reply to these charges is given below;
(i) It is totally false and incorrect. Only the fact was reported to the police.
(ii) It is also totally false and incorrect. She was my beloved wife and till today I am a widower and have not yet married again, I still curse the tragedy which has almost broken and deserted me.
(iii) My conduct is definitely above board. Nowhere in the Judgment given by the Hon'ble Session Judge, Sibsagar, prosecution could establish that I was in anyway involved in that unfortunate tragedy. Mere suspicion cannot form ground and it was because of my clean conduct that I was acquitted. Doubt is doubt, it cannot hold water.
(h) Para 13 is correct. I still deny the charges. The contention that I should be examined by the Presenting Officer, the foregoing facts will reveal that the Presenting Officer hardly attended the enquiry. However, I am still open to be cross-examined at any time even by your kindself.
(i) Para 14 is incorrect. I was very much available in Nazira. No communication as mentioned in the Para were received by me.
(j) Para 15 is correct so far it relates to my being heard in person. As regards the question of my evading the enquiry, facts have already been stated above.
(k) Para 16 is false and incorrect. Facts have already been stated above.
(l) Para 17 is totally false, incorrect and denied. The Enquiry Officer is not at all justified to give his conclusion that I deliberately avoided the enquiry. If an impartial view is taken of the aforesaid facts, it will reveal that althrough Presenting Officer was absent from the enquiry.
No action has been recommended against the defaulting Presenting Officer. Even the case was not presented how one could arrive at a conclusion. In fact the conclusion given is biased and not tenable.
5. So far as the question of submitting the adduced evidence is concerned, Sir, kindly look around, there are many employees in the Commission itself who are accused to have been involved in criminal acts and were suspended but after the judicial proceedings the learned courts have acquitted them on benefit of doubt, based on which their suspension were revoked and reinstated. I will not name them as it may not be proper and wise on my part.
6. Sir, I assure you that I am an innocent employee of the Commission, it was just irony of fate that such an-unpleasant tragedy happened. I was in no way involved in it. It has already been over 12 - 1/2 (Sic, years) that I have been kept under suspension for no fault of mine whatsoever, I would, therefore, humbly request your kind and gracious honour to revoke my suspension and my reinstatement.
7. That Sir. I have every faith and hope in you. Keeping in view of all foregoing facts, your honour, will also kindly consider my case sympathetically and will do justice to me. From the core of my heart, I again assure you that once reinstated, I will do my best to serve the Commission.
Thanking you Yours faithfully (J.C.Mondoloi) AEE (Civil), (Under Suspension) ONGC, ERBC, Nazira.
6. A perusal of the inquiry report will show that on November 16, 1988 the Presenting Officer did not turn up. Next day it was fixed on February 14, 1989. On that day also the petitioner appeared in the inquiry but the Presenting Officer did not turn up. On March 8, 1989 also the petitioner appeared but the Presenting Officer did not turn up. On March 8, 1989 both the Presenting Officer and the petitioner were present but the inquiry did not commence. The next date was fixed on May 25, 1989. It is alleged that in the meantime, in the month of April, 1989, the subsistence allowance granted to the petitioner was stopped with effect from April, 1989. On April 24, 1989 neither the petitioner nor the Presenting Officer appeared before Enquiry Officer. Thereafter, no further date of enquiry was fixed, the Presenting Officer never presented the case before the Enquiry Officer. No evidence was produced an/or any record was produced to substantiate the charge. The Enquiry Officer in his inquiry report dated September 23, 1989 quoted above opined that the case deserves ex-parte decision by the disciplinary authority on the merit of the case. On March 17, 1991 the petitioner was directed to submit a representation against the penalty proposed. But on October 25, 1991 as quoted above, the petitioner submitted his representation but no formal order of termination or removal was communicated to the petitioner. A Civil Rule being Civil Rule No. 1222/92 was filed before this court and this court gave the following directions:
"(1) The suspension order of the petitioner is set aside. TheX petitioner shall be reinstated forthwith.
(2) The departmental disciplinary proceedings pending against the petitioner shall be completed within aperiod of six months, the proceeding shall stand terminated automatically.
(3) The petitioner is entitled to all the pay and allowance as admissible or available to him.
However, liberty is given to the respondents to apply for modification or alteration of this order."
7. An application was filed for modification of the order on the ground that the petitioner was removed from service under Order dated October 19, 1991. That order of removal is quoted below:
"No. 8/1/79-D&A Dated October 19, 1991.
ORDER Whereas Shri J.C. Mondoloi, AEE(Civil) (Under suspension) was issued with a chargesheet under Regulation 36 of ONGC(CDA) Regulations, 1976 vide memorandum of even number dated 9....
Whereas Shri S.P. Basu, Chief Engineer (Civil), ONGC was appointed as Inquiry Officer vide order No.8/1/79-D&A dated October 7, 1988 to conduct an enquiry into the following charges framed against Shri J.C. Mondoloi.-
(i) he gave false information to the notice to the effect that his wife has committed suicide.
(ii) he caused death of his wife by assaulting her.
(iii) his conduct is not above board as per the judgment of Hon'ble Session Judge, Sibsagar.
The Enquiring Authority enquired into the above charge and has submitted the enquiry report (copy enclosed).
Whereas the Inquiry Officer fixed the hearing for oral enquiry on April 25, 1989, May 18, 1989, June 1, 1989, June 20, 1989, August 23, 1989, and September 19, 1989. The Inquiry Officer, thus, gave sufficient time to Shri J.C. Mondoloi to appear on the dates of hearings. Neither he appeared nor any communication expressing his inability to present himself before the Inquiry Officer, was sent to the Inquiry Officer. The Inquiry Officer was, therefore left with no other alternative but to proceed ex-parte inquiry and has finalised the enquiry ex-parte as the delinquent officer deliberately avoided the enquiry and had nothing to say in respect of the charges levelled against him.
Whereas a memorandum of even number dated March 17, 1991 was issued to Shri Mondoloi giving him an opportunity of making representation against the proposal of imposition of penalty of removal from service. No representation against the aforesaid memorandum was received from Shri J.C. Mondoloi. It is, therefore, presumed that the has nothing to say about the proposed penalty.
Now the undersigned has carefully gone through the aforesaid inquiry report, evidence on record, records of proceedings of inquiry and all other connected documents. On the basis of the undersigned's own analysis and appreciation of evidence on record, the undersigned agrees with the findings recorded and reported by the Inquiry Officer and hold that articles of charges stand proved against Shri J.C. Mondoloi. Accordingly, the undersigned imposes the penalty of removal from service on Shri Mondoloi with immediate effect."
8. This court held that the order of removal shall be effective from January 29, 1993 and it was left upon to the petitioner to challenge all other points. Thereafter, this writ application has been filed praying the following reliefs:
(i) To quash the entire disciplinary proceeding.
(ii) To quash the order dated October 19, 1991 quoted above.
(iii) To give all the benefits to the petitioner in service.
9. An affidavit-in opposition has been filed on behalf of all the respondents. In the meantime, the arrear subsistence allowance was paid up to October 19, 1991 but the petitioner claims that as the dismissal order was stated to be effective from January 29, 1993 he is entitled to all the benefits till January 29, 1993.
10. I have heard shri C. Baruah, learned Advocate for the petitioner and shri D.K. Talukdar, Learned Advocate for the respondents.
11. The enquiry conducted against the petitioner is governed by the Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulations, 1976 (hereinafter called the Regulation). Regulation 36 provides for the procedure for imposing major penalties. Regulations required for the disposal of this case are quoted below:
"36(11) The inquiring authority shall, if the employee fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding 30 days, after recording an order that the employee may, for the purpose of preparing his defence.
36(14)(a) 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.
36(19) The inquiring authority may, after the completion of the production of the evidence, hear the Presenting Officer, if any, appointed and the employee, or permit them to file written briefs of their respective case, if they so desire.
36(2) If the employee 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 regulation the inquiring authority may hold the inquiry ex-parte.
36(23)(a) After the conclusion of the inquiry, a report shall be prepared which shall contain:-
(i) the articles of charge and the statement of imputations of misconduct or misbehavior;
(ii) the defence of the employee in respect of each article of charge;
(iii) an assessment of the evidence in respect each article of charge;
(iv) the findings on each article of charge and the reasons thereof.
Regulation 37 provides for action and inquiry report.
Regulation 37 (4) provides as follows:
If the Disciplinary Authority, having regard to its finding on all or any of the article of charge and on the basis of the evidence adduced during the enquiry, is of the opinion that any of the penalties specified in clause (v) to (ix) of regulation 34 should be imposed on the employee, it shall make an order imposing such penalty and it shall not be necessary to give the employee any further opportunity of making representation on the penalty proposed to be imposed."
12. Schedule to this Regulation provides for the Act and omissions constituting Misconduct. They are quoted below:
"(1) Insubordination or disobedience, either alone or in combination with others, to any lawful orders of a superior.
(2) Use of insolent or impertinent or unparliamentary language in any official correspondence or in any representation including appeal.
(3) Bribery, sabotage, wilful damage, theft, fraud or dishonesty in connection with the business or property of the Commission.
(4) Giving false information regarding one's name, age, qualifications or previous service at the time of employment.
(5) Habitual late attendance, indebtedness or insolvency, neglect of duty, malingering and wilful or habitual absence from duty, leaving station without leave or without sufficient cause.
(6) Approaching higher authorities for personal promotion or any other personal favour or gain through other people.
(7) Spreading false rumours or giving false information, gambling, fighting, riotous behaviour, threatening or intimidating, disorderly or indecent behaviour in the Project premises, Officer Building or Commission's township, or any act subversive to discipline.
(8) Unauthorised communication of official documents or information and disclosure to any unauthorised person of information relating to the operations and business of the Commission.
(9) Habitual acceptance of free gifts, carrying on money lending or any other private business without the written permission of the commission and entering into speculation.
(10) Writing of anonymous or pseudonymous letters or associating oneself in writing such letters.
(11) Striking work or inciting others to strike work in contravention of the provisions of any law for the time being in force or for joining an illegal strike.
(12) Convictions in any court of law for any criminal offence.
(13) Shouting of defamatory or disrespectful slogans or issue or distribution of pamphlets and hand bills containing expressions maligning the character of officers or imputing bad motives to them."
13. The principle to be observed in a departmental proceeding has been settled by a catena of decisions of the Apex Court. The law as it emerges is that the disciplinary proceeding before a domestic tribunal are of a quasi judicial character, therefore, the minimum requirement of the Rules of Natural Justice is that the Tribunal should arrive at its conclusion on the basis of some evidence i.e. evidential materials which with some degree of definiteness points to the guilt of the delinquent in respect of the charges against him. Suspicion cannot be allowed to take place of proof even in domestic enquiries. The principle is that in punishing the guilty, scrupulous care must be taken to see that the innocent are not punished. These rules apply to regular criminal charges as well as to the disciplinary enquiry held under the statutory Rules. The next which is corollary of these Rules is that if the disciplinary proceedings have been conducted fairly without bias or predilection and in accordance with the relevant disciplinary Rules and the statutes, order passed by such authority cannot be interfered with in a proceeding under Article 226 of the Constitution merely on the ground that it was based on evidence which would not be sufficient for conviction of the delinquent on the same charge at a criminal trial.
14. It is also the law that all material which are reliable according to accepted norms are permissible for use in a domestic enquiry. There is no bar of oral and documentary evidence provided it has a reasonable nexus and credibility. It is further settled that the departmental authorities and administrative tribunals must be careful in evaluating such materials and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (See 1982 -I - LLJ - 46), (State of Haryana v. Ratan Singh) and (1978 - II - LLJ - 84), (Nanda Kishore Prasad v. State of Bihar.)
15. The Court in exercising power under Article 226 is not an appellate forum where the correctness of an order of the disciplinary authority can be canvassed on the ground of inadequacy and insufficiency of evidence. Certiorari can be issued only when the action of the authority causes miscarriage of justice or there is failure of justice. The court issues writ of certiorari in exercise of supervisory and not in its appellate jurisdiction. There should be an error of law apparent on the face of the record and this should lead to miscarriage of justice.
16. In (Nand Kishore Prasad v. The State of Bihar and Ors.) (Supra) , the Supreme Court inter alia points out that the High Court in exercise of its writ jurisdiction can examine the record of the disciplinary authority, not with a view to make out or reconstruct a new case, but only to see whether there was some evidence of the primary facts relied upon by the domestic tribunal in support of its conclusion.
17. It is also trite saying that even when the disciplinary authority proceeds ex-parte some evidence must be brought before it to establish the guilt of the employee. As because it is an ex-parte enquiry, the disciplinary authority cannot find a person guilty without any evidence before it. The authority conducting the enquiry must proceed in a bona fide manner and must find whether the person is guilty of the charges or not.
18. Here is a case where no evidence whatsoever was produced before the Enquiry Officer and the Enquiry Officer submitted a report wherein it has been stated inter alia as follows:
"It may further be concluded that Shri J.C. Mondoloi has nothing suitable to offer in his defence in reply to charges levelled against vide Memo dated July 9, 1988 of Member (Tech), for which the case deserves ex parte decision to be taken by the disciplinary authority on the merit of the case."
18(A). It is settled that the enquiry report along with the evidence constitute the materials on which the authority must act. The report submitted is the result of the enquiry. An enquiry without evidence is not an enquiry.
19. Nowhere in the enquiry report it has been found that the Officer is guilty of the three charges levelled against him. There is no finding that the person concerned gave false information to the Police to the effect that his wife has committed suicide. There is no finding that he caused death of his wife by assaulting her. Coming to the case of misconduct as enumerated in charge No. 3, the charge was drawn up on the basis of the Judgment of the criminal court and it is stated that his conduct is not above the board as it appeared from the judgment of the Hon'ble Session Judge.
20. Now let us have a look at the judgment of the Session Judge. The Learned Session Judge took up in paragraph 3 the following two points for decision which are quoted below:
"The only defence case is that it was a case of suicide and the injuries besides the bum injuries found in the person of the deceased were due to fall on hard substance while setting on fire herself to commit suicide. The point for determination is therefore, whether the injuries sustained by the deceased besides the burn injuries were due to assault by the accused with a blunt object and the cause of death of the deceased was due to that injuries sustained by the deceased. And secondly, whether the deceased was set on fire subsequent to her death due to assault by accused and the same was done in attempt of camouflaging the murder of the deceased committed by her husband, the accused.
As already pointed out above, the accused had sustained crack fracture of left temporal bone and there was dark clotted blood underneath the fractured bone. In cross-examination, the doctor who performed the autopsy on the dead body of the deceased stated that this kind of injury may be sustained due to fall on hard substance like pucca floor in case of attempt to commit suicide by burning. But it is not only injury sustained by the deceased. There was another injury which is mentioned in item No. 2 above. This was a defused swelling with echymosis over body of sternum in front. It is not clear how the deceased could sustain injury on the breast bone in front simultaneous with sustaining the crack fracture injury over the left temporal region. In that case the deceased must have dashed against the hard substance the pucca floor twice, once on left side to sustain the crack fracture over the left temporal region and at another time on front side to sustain the defused swelling with echymosis over body of sternum. In other words the deceased must have fallen twice on the pucca floor to sustain these injuries in item No. 1 & 2, once on her left side and then on her front side. This falling of a dying person appears to be beyond any probability. The doctor opines that the first and the second injuries were the result of direct hit with blunt object. The cause of death of the victim as stated by the doctor was due to 'coma' as a result, of the head injury sustained by her. So, the superficial burns over front of both thighs, from abdomen and part of chest and right cheek and back of chest area were not the cause of death of the deceased. Suspicion, therefore arises that the deceased was set on fire subsequent of her death due to giving blow with blunt object as alleged by the prosecution. The doctor, however, opined that the injuries were antemortem. In that case the deceased might have set on fire by herself or she was set on fire by someone else."
21. In the last part of the paragraph 4, the Session Judge opined as follows:
"In that case the deceased might have set on fire by herself or she was set on fire by some one else."
22. In paragraph 5, the Learned Session Judge found as follows:
"There is no eye witness of the alleged occurrence of assault and committing murder of the charge sheet. Large number of witnesses have been listed. This includes the father of the deceased and some of close neighbours of the quarter occupied by the accused. But none of them has been examined. The police also appears to have seized some letters on being produced by the father of the deceased on May 5, 1979 as per seizure list, ext.7. These are not produced. It is stated that these are either completely damaged or not traceable now. These letters were written by the deceased to her father. If these letters were available before the court, and if the father of the deceased could have been examined, it would have thrown some light about the behaviour and conduct of the accused towards his wife, the deceased."
23. In paragraph 6, the Learned Session Judge found as follows:
"The entire occurrence has therefore, remained shrouded with mystery as it could not be definitely ascertained whether the deceased was murdered and then set on fire, or whether she herself committed suicide by setting fire herself and the injuries on the head and breast were sustained due to fall on pucca floor of the house. I am, therefore constrained to come to a conclusion that the prosecution has not been able to bring home the charge against the accused beyond any reasonable doubt due to non-examination of the witnesses on the material point of committing murder of the deceased by the accused. The accused is given this benefit of doubts and he is held not guilty and acquitted simply on benefit of doubt."
24. Whether the authority can conduct an enquiry on the basis of the first two charges on the face of the judgment of the Criminal Court that aspect of the matter will be considered later on but let us see whether the conduct of the petitioner shall amount to 2 misconduct as enumerated above in the regulation applicable to the petitioner,
25. In (1984 - II - LLJ - 186), (A.L Kalra v Project and Equipment Corporation of India Ltd.) wherein the Supreme Court pointed out that the charges of misconduct must be clearly covered by the misconduct as specified under the Head Misconduct and in paragraph 25 of the Judgment, the Supreme Court has pointed out as follows:
"Now if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority nor the jurisdiction nor the power to impose any penalty for the alleged misconduct. An administrative authority who purports to act by its regulation must be held bound by the regulation. "Even if these regulations have no force of law the employment under these corporations is public employment, and therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulation." (Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi)." (1975 -I - LLJ-399) (SC)
26. In (1963-I-LLJ-684) (W.M. Agnani v. Badri Das and Ors.) and in (1978 -I - LLJ - 507) (SC) (Lala Ram v. D.C.M. Chemical Works Ltd. and Anr.) the Supreme Court pointed out that a private quarrel between the employee and the stranger, with which the employer is not concerned, falls outside the categories of misconduct and the acts which are not subversive of discipline amongst employees or such misconduct or misbehavior by an employee cannot constitute misconduct so as to form the basis of an order of dismissal or discharge. Generally a conduct not in the course of employment cannot be a misconduct. Similarly, a conduct which is not misconduct as per the conduct Rules also cannot be the subject of disciplinary action against Goverment servant. A domestic quarrel which has nothing to do with the employment of an employee cannot be a misconduct.
27. Mr. Talukdar, Learned Counsel appearing for the respondents lays emphasis on No. 7 as enumerated above and submits that the petitioner gave false information but there is no evidence in support of it. So, the removal of an employee on this ground cannot stand.
28. The next question is that whether the disciplinary authority had the jurisdiction to initiate disciplinary proceeding on the basis of some charges which were the subject matter of the criminal trial. The law on this point is settled by the following decisions:
(i). (1981 - II - LLJ - 6) (Corporation of the City of Nagpur Civil Lines and Anr. v. Ramchandra G. Modak and Ors.) wherein paragraph 7 the Supreme Court pointed out as follows : PP-8-9 "The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is npt taken away nor is its direction (discretion) in any was fettered. However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental inquiry in the event of the acquittal of the respondents. If however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so."
(ii) (1991 - II - LLJ - 327), (Babulal v. State of Haryana and Ors.), wherein the Supreme Court pointed out as follows P.330 :--
"His acquittal from the criminal charge does not debar the disciplinary authorities to initiate disciplinary proceedings and after giving an opportunity of hearing to the appellant pass an order of termination on the basis of the terms and conditions of the order of his appointment."
(iii) 1990 (1)GLR Page 411 (Sri Rupeswar Dutta v. Oil India Ltd and Ors.) wherein a Division Bench of this court stated as follows;
"It is true that disciplinary proceeding for an act as misconduct, which also is the subject matter of charge in a criminal trial, can be taken, but where the trial has ended in. acquittal it is not reasonable to accept that in the disciplinary proceedings he can be found to have committed the said act. It is a different matter that the act complained of as misconduct may be related or may even be similar to that act which constitutes the charge in a criminal trial but where the act is the 'same' or 'identical as the act which constituted the charge in criminal trial, and criminal trial results in acquittal, the disciplinary proceeding in respect of the same act as misconduct cannot proceed and any action taken on its basis cannot be sustained, for the reason that a competent court of law having found the person not guilty of having committed the 'act' which constitutes the offence, it shall not be proper and just or in accordance with public policy to accept the same act as having been proved in a disciplinary proceeding for taking action against the concerned person."
The court further found as follows :--
"The petitioner an employee of the respondent company was working as Boiler Attendant (Class-I) when by notice dated June 7, 1993 disciplinary proceeding against him was drawn, on the complaint that on April 24/25, 1983 midnight at Duliajan he had murdered J.C. Deka, an employee of the Drilling Department (Rigs), which was misconduct under Section XIV (2) (X) of the Company's Modified Standing Orders. The petitioner was also placed under suspension. The petitioner submitted reply dated June 9, 1983 wherein he stated that since the case against him was subjudice, its verdict be awaited. The disciplinary enquiry was conducted and the petitioner was dismissed from service by the impugned order dated August 24, 1983. The petitioner's appeal and subsequent representation to the authorities of the respondent company did not succeed. The respondent took the matter to the Central Industrial Tribunal, Calcutta for approval of action taken. Before the Central Industrial Tribunal, the petitioner prayed that the trial in the Criminal Court was pending and the matter should not be proceeded further. The prayer having not succeeded, the petitioner has come to this court and by order dated May 28, 1984 in Misc. Case No. 301 of 1984, this Court had ordered stay of the proceeding in Misc. Application No. 7 of 1983, before the Central Industrial Tribunal at Calcutta."
"The respondents have opposed the petition and have filed a copy of the judgment of the Additional Session Judge in Session Case No. 81 (D) of 1984, which shows that the petitioner was acquitted of charge under Section 302 IPC, even though he was convicted on charge under Section 201 IPC and sentenced to two years R.I. The petitioner's appeal against conviction and sentence under Section 201 IPC is pending in this Court."
"The judgment of the Additional Sessions Judge, Dibrugarh dated January 31, 1987 at Annexure A with affidavit in opposition clearly shows that the petitioner was acquitted of the charge under Section 302 IPC. The misconduct for which disciplinary action against the petitioner was taken was that he had murdered J.C. Deka. The act, which constituted the misconduct, with which the petitioner was charged was identical with the charge on which he has been acquitted by competent Criminal Court, and hence in our opinion, action taken against the petitioner cannot be sustained."
29. This being the position of law, the departmental proceedings which were initiated against the petitioner on the basis of same set of charges as was the subject matter in a criminal proceeding which ended in acquittal cannot be sustained and further there is absolutely no evidence and/or findings with regard to the charges.
30. The inquiry to be conducted against an employee is not merely a formality. The rights and safeguards envisaged under the Rules are substantial and violation of these rights and safeguards prejudicially affecting the employee must be guarded against. Rules which provide for taking away source of livelihood must be given strict construction in order to provide a safeguard against arbitrariness or injustice, which may be caused to an employee facing such an inquiry. A finding based on no evidence must be deemed to be a perverse finding. A bare perusal of the records of the inquiry conducted in the instant case will show that there was gross violation of the Principles of Natural Justice. There was no finding of guilt as against the employee. Accordingly, I hold as follows :--
(i) That the whole disciplinary proceeding initiated as against the petitioner is without authority of law and the rules prescribed for holding the inquiry were violated causing prejudice to the petitioner.
(ii) The order of removal dated October 10, 1991 passed by the respondent No. 2 is bad in law and the same shall stand quashed and the petitioner shall be reinstated.
(iii) The petitioner shall be entitled to all the benefits of his service.
Accordingly, this writ application is allowed.