Central Administrative Tribunal - Allahabad
Dheeraj Kumar Rai vs Post M P Circle on 12 December, 2025
1
RESERVED ON 08.12.2025.
Central Administrative Tribunal
Allahabad Bench, Allahabad
****
Original Application No. 330/01095 of 2023
This the 12th Day of December, 2025.
Hon'ble Mr. Justice Om Prakash - VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Dheeraj Kumar Rai, aged about 32 years, son of Shri Bhrigunath Rai,
resident of Sisotar, Police Station Sikandarpur, District Ballia
.......Applicant
By Advocate: Shri Anil Kumar Singh/J. Nayak/Shri M.K Upadhyay/Ms.
Karishma Singh/Shri Pankaj Kumar Rai
Versus
1. Union of India through the Secretary, Ministry of Communication,
Department of Posts, Government of India, Dak Bhawan, Sansad
Marg, New Delhi.
2. Chief Post Master General, M.P Circle, Dak Bhawan, Hosangabad
Road, Bhopal.
3. Post Master General, Jabalpur Division, Jabalpur.
4. Director Postal Services (HQ) M.P Circle, Bhopal.
5. Director Postal Services, Jabalpur Region, Jabalpur.
......Respondents
By Advocate: Shri Vinod Kumar Pandey
ORDER
By Justice Om Prakash - VII, Member (J) This Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following relief(s):-
"8.1. This Hon'ble Tribunal may be pleased to quash the impugned orders dated 04.02.2021 and 01.11.2023 passed by respondent No. 5 and 3 and further direct the respondents to reinstate the applicant in service with all consequential benefits.
MANISH KUMAR SRIVASTAVA 2 8.2 Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in fravour of the applicant.
8.3 Award the costs of the original application in favour of the applicant".
2. The brief facts of the case are that the applicant was appointed as Inspector (Posts) on 07.12.2015 in the Madhya Pradesh Postal Circle and joined his duties on 14.12.2015. His work was appreciated by his senior officers. Later, vide order dated 21.07.2017, he was sent on deputation to the Postal Directorate, New Delhi, for Capital CSI Project Work. A departmental enquiry was initiated against the applicant on the following charges:
(i) Charge I: He allegedly sent four obscene videos from his mobile number (7974515431) to a WhatsApp group created for monitoring M.P. Circle, thereby violating Rule 3(1)(iii) and 3(1)(xviii) of the CCS (Conduct) Rules, 1964.
(ii) Charge II: While working as Office Supervisor, Superintendent Rail Post Service, Jabalpur, he allegedly uploaded his own obscene/nude videos through Facebook Messenger, which was unbecoming of a government servant.
(iii) Charge III: He took one day emergency leave on 05.11.2020 (sanctioned up to 08.11.2020) but remained absent without authorization till 26.11.2020.
(iv) Charge IV: On 01.11.2020, he allegedly entered the National Sorting Hub, Jabalpur, smoked there and misused the mobile phone of one employee, Shri Saurabh Sharma, by making calls to the SSP Prayagraj Office, violating Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964.
The Inquiry Officer, after examining the evidence, held that Charge No. 1 was not proved, while Charges II, III, and IV were proved. A dissent note was issued by the Disciplinary Authority on 12.11.2021 under Rule 15(2) of the CCS (CCA) Rules, 1965, directing the applicant to submit his reply within 15 days. The applicant submitted his detailed MANISH KUMAR SRIVASTAVA 3 reply on 07.12.2021. Without properly considering the reply, the Disciplinary Authority removed the applicant from service vide order dated 04.02.2022. The applicant challenged the said order in O.A. No. 448/2022, which was disposed of on 12.07.2023 as premature, with a direction to exhaust the available departmental remedy. In compliance, the applicant submitted an appeal dated 10.07.2023. The Appellate Authority, vide order dated 01.11.2023, modified the penalty from removal from service to compulsory retirement. Aggrieved against the disciplinary and appellate orders, the applicant has filed the present Original Application.
3. Per contra, learned counsel for the respondents has filed counter affidavit in which they have stated that applicant has worked in Postal Directorate, New Delhi from 5.8.2017 to 24.8.2020 by order dated 04.08.2017 on attachment basis. Again by order dated 26.8.2020, the applicant was ordered to work in Divisional Office, Jabalpur in Railway Mail Services 'JB' Division Jabalpur as Office Supervisor. The applicant was given memo dated 06.11.2020 whereby he was suspended and he was given subsistence allowance under FR-53 (1) (ii) (a) and FR 53 (2). On the basis of charges leveled against him, the regular departmental enquiry was conducted under Rule 14 of CCS (CCA) Rules, 1965 for unlawful act committed by the applicant and after following regular department inquiry, he was awarded punishment of removal from service vide order dated 4.2.2022. Without availing the departmental remedy, applicant moved OA No. 488/2022 which was dismissed with the liberty to the applicant to prefer appeal against the order of punishment. Applicant thereafter preferred a departmental appeal. Thereafter, the appellate authority sympathetically considered the departmental appeal of the applicant and modified the order of removal from service to the order of compulsory retirement from service order dated 01.11.2023.
4. Rejoinder affidavit has also been filed by the applicant in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit. Nothing new has been asserted in the rejoinder affidavit.
MANISH KUMAR SRIVASTAVA 4 5 We have heard Shri M.K Upadhyay as well as Ms. Karishma Singh, learned counsel for the applicant and Shri Vinod Kumar Pandey, learned counsel for the respondents and perused the record.
6. Learned counsel for the applicant submits that the alleged act of sending obscene videos was not done by the applicant but by his wife and her family members, who have a criminal background. After learning about this, the applicant filed a matrimonial case seeking legal separation. Due to this, his in-laws became hostile and threatened to ruin his career, which caused him mental agony and depression. It is further submitted that the applicant has been a sincere and disciplined employee since his appointment in 2015 and has always performed his duties honestly. Learned counsel for the applicant further argued that four charges have been leveled against the applicant. Out of them, in the enquiry report, the Inquiry Officer did not prove Charge No. 1. The disagreement note prepared by the Disciplinary Authority does not contain the reasons on the basis of which the disagreement note was prepared. It was further argued that Charge No. 2 does not contain any date of the incident and if any obscene message was posted on Facebook, it was done by the wife of the applicant. A specific plea has been taken from the very beginning by the applicant that his mobile was taken away on 01.11.2020 by his wife, and the said mobile was in her custody. She might have posted the obscene photographs on Facebook. Since the applicant was not in possession of the said mobile, the opinion formed by the Inquiry Officer as well as the Disciplinary Authority is based on no evidence. Unless and until the date of posting of obscene photographs on Facebook is clarified, the charge cannot be held to be proved. It is further argued that the applicant had gone to Jabalpur from Noida on 01.11.2020 itself. The prosecution has not collected any evidence as to whether the obscene messages/photographs were uploaded on WhatsApp or Facebook from Noida or Jabalpur. The applicant could only be held responsible if the messages, as contained in Articles 1 and 2, were uploaded when applicant was in possession of the mobile. Since the applicant was not in possession of the mobile when he reached Jabalpur, the opinion formed by the authorities concerned in this respect is also MANISH KUMAR SRIVASTAVA 5 based on no evidence. It was next argued that Charge No. 3 pertains to unauthorized absence. It is an admitted fact that during the relevant period, the applicant had taken leave on 05.11.2020 and had obtained station leave permission up to 08.11.2020. Due to mental depression, he could not resume duty, but the absence was not willful. It is also argued that unless a specific charge of willful absence is framed, mere unauthorized absence cannot be treated as misconduct. This aspect has not been considered by the authority concerned. It is next contended that Charge No. 4 is not factually correct. There has been non-compliance with the provisions of Rule 14(18) of the CCS (CCA) Rules in regard to the evidence against charge No.4. On this ground, prejudice has been caused to the applicant and the entire enquiry proceedings stand vitiated. It is also argued that the Inquiry Officer as well as the Disciplinary Authority have relied upon statements made during the preliminary enquiry, but such statements were not proved during the regular enquiry. Unless proved during the regular enquiry, the same could not have been relied upon. Learned counsel for the applicants argued that punishment imposed upon the applicant is disproportionate. Learned counsel for the applicant, in support of his submissions, placed reliance upon the case law of Ram Kishan Vs. Union of India and others reported in 1996 AIR (SC) 255.
7. Learned counsel for the respondents argued that the applicant himself had posted obscene photographs through his mobile phone in the WhatsApp group and also on the Facebook platform. This fact was admitted by the applicant during the preliminary enquiry. Mere non- mentioning of the date of posting of obscene photographs on Facebook is not sufficient to presume that Charge No. 2 is not proved or that a fair enquiry has not been conducted. It is argued that the entire procedure prescribed under the Rules has been followed. Witnesses have been examined, and there is sufficient evidence against the applicant in support of all the charges. The disagreement note contains specific reasons for disagreeing with the opinion of the Inquiry Officer regarding Article No. 1. It is also argued that since the applicant did not resume MANISH KUMAR SRIVASTAVA 6 duty after the leave period and remained unauthorizedly absent, Charge No. 3 also stands proved. It is further contended that the applicant, while posted at the National Sorting Hub, Jabalpur, misused the mobile phone of one employee, Shri Saurabh Sharma, by making calls to the SSP, Prayagraj Office, impersonating him. These facts themselves establish that the applicant's conduct was not in conformity with that expected of a Government employee and falls under the purview of misconduct. Referring to the enquiry proceedings, it is argued that the applicant had participated in the enquiry and no prejudice was caused to him. The punishment imposed by the Disciplinary Authority was later modified by the Appellate Authority. There is no infirmity, impropriety, or perversity in the impugned orders. Hence, the OA, being devoid of merit, is liable to be dismissed.
8. We have carefully considered the pleadings of learned counsel for the parties and the submissions advanced by them.
9. Before discussing the submissions raised across the bar, it will be useful to quote the article of charges leveled against the applicant.
अनु े द-।
ी धीरज राय, कायालय पयवे क, कायालय अधी क रं ल डाक सेवा, जेबी' मंडल, जबलपुर आर.एम. एस. िदनांक 26.08.2020 से कायालय पयवे क, संभागीय कायालय, 'जेबी' मंडल, जबलपु र आर.एम.एस के पद पर कायरत रहते ए िवभागीय मॉनीट रं ग हेतु जबलपुर प र े एवं म. . प रम ल व संभागीय र के िविभ Whatsapp groups- PNOP-MNOP-PMA MONITORING, MP Circle PG Monitoring, RTN Monitoring group MP, Mails JB Region, DO RIMS JB Dn Jabalpur एवं IP ASP Association, MP म िदनांक 05.11.2020 को राि 09:42 बजे से 09:46 बजे के दौरान अपने मोबाईल / ाट् सएप न र 7974515431 से यं की न अव ामअ ील कृ करते ए 04 अ ील वीिडयो प पो िकए और इस कार उ ी धीरज राय ने ऐसा अशोभनीय व अनैितक कृ िकया जो िक एक शासकीय सेवक के आचरण के िवपरीत है।
अतः आरोिपत िकया जाता है िक, उ ी धीरज राय कायालय पयवे क, कायालय- अधी क रे ल डाक सेवा, 'जेबी' मंडल, जबलपुर आर.एम.एस. ारा ऐसा कृ िकया MANISH KUMAR SRIVASTAVA 7 गया जो शासकीय सेवक के प म उनसे अपेि त नही ं था तथा ऐसा कृ कर उ ोंने क ीय िसिवल सेवाएं (आचरण) िनयमावली-1964 के िनयम 3(1) (iii) एवं 3(1)(xvii) का उ ंघन िकया।
अनु े द-।।
ी धीरज राय, कायालय पयवे क, कायालय अधी क रे ल डाक सेवा, 'जेबी' मंडल, जबलपुर आर.एम.एस. िदनांक 26.08.2020 से कायालय पयवे क, संभागीय कायालय, 'जेबी' मंडल, tcyiwj vkj ,e ,l ds in ij dk;Zjr gS vkSj buds }kjk Lo;a dh uXu voLFkk esa v"yhy कृ वारते ए फेसबुक मेसजर एप पर ऑन-लाईन लाईव चेट करते ये 04 अ ील वीिडयो प बनाये गये। जो कमशः अविध 38 सेकड अविध 23 सेकड अविध 09 सेकड एवं अविध 1 िमनट 20 सेकड की है। फेसबुक मेसजर एप पर इं टरने ट म लाईव चैट म यं की न अव ाम अ ील कृ करते ए वीिडयो बनाना व चेिटं ग करना एक गंभीर अिनयिमतता है जो िक शासकीय सेवक के आचरण के िवपरीत है। इस संबंध म ी धीरज राय ने अपने बयान िदनाँक 01.12.2020 म उ सभी 04 वीिडयो म यं का होना ीकार िकया है। इस कार उ ी धीरज राय ने ऐसा अशोभनीय व अनैितक कृ िकया जो िक एक शासकीय सेवक के आचरण के िवपरीत है।
अतः आरोिपत िकया जाता है िक, उ ी धीरज राय, कायालय पयवे क, कायालय अधी क रे ल डाक सेवा, 'जेबी' मंडल, जबलपुर आर.एम.एस. ारा ऐसा कृ िकया गया जो शासकीय सेवक के प म उनसे अपेि त नही ं था तथा ऐसा कृ कर उ ोंने क ीय िसिवल सेवाए (आचरण) िनयमावली-1964 के िनयम 3(1) (iii) एवं 3 (1) (xvill) का उ ंघन िकया।
अनु े द-।।।
यह िक, ी धीरज राय, कायालय पयवे क, कायालय अधी क रे ल डाक सेवा, जेबी
मंडल, जबलपुर आर.एम.एस. िदनांक 26.08.2020 से कायालय पयवे क, संभागीय कायालय, 'जेबी िडवीजन, जबलपुर आर.एम.एस. के पद पर कायरत रहते ए िदनांक 09.11.2020 से िदनांक 20. 11.2020 की अविध म िबना कोई सूचना िदए एवं स म अिधकारी से अवकाश ीकृत कराए बगै र अनािधकृत प से अपनी ूटी से अनुप त रहे।
अतः आरोिपत िकया जाता है िक, उ ी धीरज राय, कायालय पयवे क, कायालय- अधी क रे ल डाक सेवा, 'जेबी' मंडल, जबलपु र आर.एम.एस. ारा अपने कत के ित समपण न बनाये रखते ए डाक िनयम पु का-III के िनयम 62 के ावधानों के िवपरीत काय िकया जो शासकीय सेवक के प म उनसे अपेि त नही ं था तथा ऐसा MANISH KUMAR SRIVASTAVA 8 कृ कर उ ोंने क ीय िसिवल सेवाएं (आचरण) िनयमावली-1964 के िनयम 3(1) (ii) एवं 3 (1) (ii) का उ ंघन िकया।
अनु े द-IV यह िक, ी धीरज राय, कायालय पयवे क, कायालय अधी क रे ल डाक सेवा, 'जेबी मंडल, जबलपुर आर.एम.एस. िदनांक 26.08.2020 से कायालय पयवे क, संभागीय कायालय, 'जेबी िडवीजन, जबलपु र आर.एम.एस. के पद पर कायरत रहते ए रिववार िदनांक 01.11.2020 को नेशनल सॉिटं ग हब (NSH) जबलपुर के कायालय म अनािधकृत प से िसगरे ट पीते ए दोपहर लगभग 13:30 बजे वेश िकया व लगभग 15 िमिनट तक मौजूद रहे और इसी बीच मैनेजर, NSH जबलपुर की सीट की कुस पर बैठकर िसगरे ट का सेवन करते ए धू पान करते रहे। साथ ही सेट-1 म कायरत कमचारी ी सौरभ शमा, छं टाई सहायक, NSH जबलपुर से उनका मोबाईल फोन लेकर DGP Office उ र दे श एवं SSP Prayaagraj Office के दू रभाष न र मशः 9454400248 एवं 9454400101 पर यं का प रचय बढ़ा-चढ़ाकर (सुप रटडट, जबलपुर) बताते ए एवं झूठा प रचय दे ते ए अनाव क िशकायत / वातालाप कर मोबाईल फोन का दु पयोग िकया।
अतः आरोिपत िकया जाता है िक उ ी धीरज राय, कायालय पयवे क, कायालय अधी क रे ल डाक सेवा जेबी मंडल, जबलपुर आर.एम.एस. ारा ऐसा कृ िकया गया शासकीय सेवक के प म उनसे अपेि त नही ं था तथा ऐसा कृ कर उ ोंने क ीय िसिवल सेवाएं (आचरण) िनयमावली-1964 के िनयम 3(1)(iii) का उ ंघन िकया"
10. Inquiry officer after conducting the enquiry submitted enquiry report dated 28.09.2021. Finding of the Inquiry Officer is that on the basis of evidence collected during enquiry charge No.1 was not found proved. Charge Nos. 2, 3 and 4 were found proved. Charge No.1 is relating to uploading of the obscene material on the whatsapp group. In this charge, date of uploading the whatsapp message is specifically mentioned as 5.11.2020 but in the charge No.2 which is related to uploading of obscene material on facebook is not clear that on which date this message was uploaded on the facebook messenger app. If the charge No. 3 as quoted hereinabove is taken into consideration, nothing is mentioned in it whether absence was willful or not. Charged official has proceeded on leave on 5.11.2020 after obtaining station leave permission. His absence start from 09.11.2020 till 26.11.2020. From 05.11.2020 to 08.11.2020, he was on sanctioned leave. Before analyzing the opinion MANISH KUMAR SRIVASTAVA 9 formed by the Inquiry Officer in regard to charge No. 3, it will be useful to quote the law laid down by the Hon'ble Supreme Court in Krushnakant B. Parmar Vs. Union of India and others reported in (2012) 1 Supreme Court Cases (L&S) 609 which is as follows:-
"16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18 . In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"25 It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone MANISH KUMAR SRIVASTAVA 10 calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty".
11. Disciplinary Authority disagreeing with the opinion formed by the Inquiry Officer in regard to charge No.1 has prepared dissent note on dated 08.11.2021, which is as follows:-
"DEPARTMENT OF POSTS, INDIA OFFICE OF THE POSTMASTER GENERAL, JABALPUR REGION. JABALPUR-482001 Dated 08.11.2021 at Jabalpur Dissent Note Undersigned agree with the findings of inquiry report except the interpretation and conclusion of 1.0. with respect to charges in article-1. The 1.0. has interpreted that the posting of obscene videos from the mobile no. SIM no. 7974515431 in Whatsapp groups is different from posting of videos from charged officer. 1.0. has also carried away by the argument made by the charged officer that his mobile phone was forcefully taken by his wife and concluded that charges in article-1 are not proved.
However, I disagree on these points :-
1. Charged officer not provided any proof to support this argument.
2. It is hard to believe that the charged officer kept quiet when his mobile was taken away and didn't make any attempt to take it back.
3. Posting of obscene videos in social platform caused severe damage to the reputation of the officer in the department and among friends then why the officer didn't take any legal action against the person who committed such a crime? No document is submitted by C.O. to indicate that any such action has ever been initiated.
Based on above observation, I have come to conclusion that the charged officer is guilty of charges in article-1 also".
12. Charged official has taken plea at every stage that his mobile was taken away by his wife and his brother-in-law and he has not posted the obscene material on the whatsapp group but it was posted by his wife. There was a continuing matrimonial dispute between the husband and MANISH KUMAR SRIVASTAVA 11 wife. It is also plea of the applicant that on the date of posting of obscene material on whatsapp group he was at Jabalpur. If the dissent note dated 08.11.2021 prepared by the Disciplinary Authority in regard to charge No. 1 is taken into consideration, on what ground Disciplinary Authority disagreed with the opinion formed by the Inquiry Officer has not been made clear. Disagreement is made only on the ground that charged official did not adduce any evidence in support of his plea. He has not attempted to take mobile back. It is also observed in the dissent note that charged official has not submitted any document to show that any legal action against his wife and his brother-in-law has been taken by him. If the observation recorded by the Disciplinary Authority in the dissent note is taken into consideration, it is evident that evidence considered by the Inquiry officer have not been discussed in it on what ground. Opinion formed by the Inquiry Officer on the basis of evidence collected during inquiry was not believable. Disciplinary Authority ought to have prepared a dissent note discussing the evidence collected by the Inquiry officer during enquiry. Since no such attempt has been made in the dissent note, thus, in our considered opinion order passed by the Disciplinary Authority is vitiated from the stage of preparing the dissent note.
13. As far as charge No.2 is concerned, when charged official specifically pleaded that his mobile was in the custody of his wife and she has posted the obscene material on the facebook messenger app. On the basis of aforesaid stand, contents of charge No.2 cannot be said to be proved. On which date obscene material was posted on the facebook messenger app is not disclosed in the charge No.2 nor in the evidence collected during the enquiry. It appears that while serving the article of charges, this fact has been overlooked by the Disciplinary Authority. Inquiry Officer has also not taken into consideration this fact in the enquiry. Although this fact has not been raised by the charged official during enquiry but on this ground itself, the date of posting of obscene material on the facebook messenger app cannot be presumed to be proved. It is pertinent to mention here that in regard to charge NO.2.
MANISH KUMAR SRIVASTAVA 12 Inquiry Officer ought to have ascertained that on the date of posting of obscene material on facebook messenger app whether mobile in question was used at Noida or at Jabalpur. If on dated 5.11.2020 at the time of posting of the obscene material on the whatsapp group as well as facebook messenger app, the applicant was not present at Noida and aforesaid material was posted at Noida necessarily the plea of the charged official can be taken to be true. No finding is returned nor any evidence to this effect has been collected.
14. As far as unauthorized absence of the applicant is concerned, due to mental depression, he could not resume duty, but the absence was not willful. It is also argued that unless a specific charge of willful absence is framed, mere unauthorized absence cannot be treated as misconduct. This aspect has not been considered by the authority concerned. In view of decision of Krushnakant B. Parmar (supra) case mere unauthorised absence if it is not willful cannot be construed as misconduct. It was incumbent upon the Inquiry Officer, Disciplinary Authority as well as Appellate Authority to see whether unauthorized absence of the applicant as disclosed in the article of the charges and in the impugned orders was willful or not. No specific charge to this extent has also been framed in the matter nor any opinion to this extent has been formed in the impugned order, thus, on this ground also impugned orders are not sustainable.
15. Now remain the charge No. 4 only, initially in this matter applicant was dismissed from service by the Disciplinary Authority. In appeal, appellate authority has modified the punishment of dismissal into compulsory retirement adopting sympathetic ground. Applicant has joined service on 7.12.2015. Appellate authority order is of dated 1.11.2023, what benefit he will derive by the modified punishment from dismissal to compulsory retirement in the early years of the service is out of imagination. Punishment imposed upon the applicant only on the basis of charge No. 4 can also not be sustained. Since fair opportunity to defend the charges have not been afforded to him. No cogent reason discussing the evidence collected during enquiry has been mentioned in MANISH KUMAR SRIVASTAVA 13 the dissent note by the disciplinary authority and in charge No. 2 date of posting of obscene material on facebook messenger app has not been disclosed and in charge No. 3 fact of willful absence has not been disclosed, thus, we are of the view that fair procedure have not been adopted during the enquiry. There is violation of principle of natural justice and the enquiry proceeding is vitiated for the reason disclosed hereinabove. Thus, OA is liable to be allowed. Impugned order dated 04.02.2021 and 01.11.2023 are liable to be set aside. Matter is liable to be remanded back to the Inquiry Officer/Disciplinary Authority to start a de novo proceeding on the basis of discussion made hereinabove, if he is advised so.
16. As far as plea regarding inadequate compliance of the provision of Rule 14 (18) of CCS (CCA) Rules is concerned for the reasons discussed hereinabove, this issue need not requires to be analyzed. So far as reliance placed on statement of charged official made during preliminary enquiry is concerned, it also does not require any analysis as the matter is remanded back to the Inquiry Officer/Disciplinary Authority to start de novo proceedings.
17. In view of the above discussion, the Original Application deserves to be allowed and accordingly allowed. The impugned orders dated 04.02.2021 (order of the Disciplinary Authority) and 01.11.2023 (order of the Appellate Authority) are hereby set aside. Applicant will be reinstated in service extending all the consequential benefit. The matter is remanded to the Inquiry Officer/Disciplinary Authority, who shall be at liberty to initiate de novo proceedings, if so advised, strictly in accordance with law and in light of the observations made hereinabove. No order as to costs. All pending MAs are stand disposed.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
Manish/-
MANISH KUMAR
SRIVASTAVA