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1. The petitioner, who has been removed from service under rule 23 of Bharat Heavy Electricals Limited (Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as 'the Rules'), has filed this writ petition challenging the order of removal from service and for directions that after quashing the impugned order the petitioner be declared to have continued in service with all benefits.

2. The facts, in brief, are that the petitioner, who is a qualified science graduate with Bachelor of Engineering Degree from Roorkee and who is stated to have brilliant academic record and had also received training in U.S.S.R. in design and production and held certain responsible positions in different public undertakings had joined the respondent undertaking as Senior Manager with effect from February 15, 1977, and was promoted as Deputy General Manager with effect from April 2, 1982, in the pay scale of Rs. 2250-2750, was dealt with disciplinary proceedings on the basis of the two charges against him, firstly, that he while functioning as Deputy General Manager, Panipat, during the period December 1982 to January 1983 had preferred false LTC claim in respect of the journey from Howrah to Varanasi purported to have been performed by him and his family members from December 31, 1982 to January 1, 1983, in First Class against ticket Nos. 9014-9017 and 3229 and 3226 which shows that he had failed to maintain absolute integrity and acted in a manner unbecoming of a public servant thereby violating Rule 4 of the Rules and secondly, that while he applied for grant of one advance increment and cash incentive in terms of relevant instructions on the basis of certificate of Dr. P. N. Shukla, Senior Surgeon, Combined Hospital, Chandauli countersigned by its Superintendent certifying that the petitioner was vasectomised on January 1, 1983, in that hospital and another certificate without any date issued by Dr. B. N. Shukla certifying that the sperm count of the petitioner found that vasectomy operation had been completely successful whereas, in fact, the petitioner did not get any vasectomy operation and sperm count done at the said hospital at any time and had sought advance increment and cash incentive on false grounds which acts of the petitioner showed that he had not maintained absolute integrity and acted in a manner unbecoming of a public servant thereby violating Rule 4 of the Rules.

3. The backdrop of the holding of disciplinary inquiry was on the basis of suspicion entertained by Shri Anil Khanna, Senior Personnel Manager, regarding the genuineness of the petitioner's claim of grant of advance increment on the basis of vasectomy operation undergone by him as he opined that good facilities for such like operation are available at Panipat and Delhi and it was really somewhat abnormal that the petitioner who was enjoying his LTC trip should have got himself operated by breaking journey at Varanasi and the too from a far flung hospital from Varanasi and he should travel after the operation on the same day and reach Delhi on the next day and resume his duty in time. Shri R. N. Sharma, Senior Security and Vigilance Officer, made certain spot inquiries at the hospital and submitted his report dated July 29, 1983, recommending for holding an inquiry. On July 4, 1984, a memorandum containing charges mentioned above was served on the petitioner and after recording evidence the Inquiry Officer Shri A. R. Banerjee held the petitioner guilty of both the charges and on the basis of the inquiry report the penalty of removal from service was imposed on the petitioner by the respondent. It is undisputed fact that Shri B. S. Samant, Director (power), had ordered for holding of disciplinary inquiry and he had also passed the impugned order of removal of the petitioner from service.

11. Now coming to the second charge, the petitioner had set up the case that the wanted his vasectomy operation to be done by his brother Dr. P. N. Shukla, who was posted in Kamlapati Tripathi Combined Govt. Hospital, Chanduali, at a distance of 32 kms. from Varanasi and so, on reaching Varanasi at 9.55 A.M. he left his family with his brother's family, at Varanasi and he proceeded to the said Hospital at Chandauli and operation was performed by his brother in that hospital which took about 10 or 15 minutes and he, on that very day, took the train from Varanasi and reached Delhi on the following day. He had submitted the necessary certificate duly signed by his brother and countersigned by the Medical Superintendent for getting the increment in accordance with Rules of the respondent. Another certificate was also produced by the petitioner showing that the said operation had been successful. Before the Inquiry Officer the evidence was led in the shape of entries from the Admission Register of the Hospital and also entries from the Patholgist's Register of the relevant dates to show that the name of the petitioner had not been mentioned in the said registers. It was tried to show that for a person who is to admitted in the said hospital his name has to appear in the Admission Register and if anaesthesia is administered to a particular patient then his name has to appear in the Register of Pathology Lab, and similarly if any sperm test was to be carried out the Pathology Register has to show the name of the patient of whom such test has been performed. The case of the petitioner, on the other hand, has been that as he was to get himself operated, he thought it fit to have the operation done from his own brother in whom he could have more confidence and as he was not admitted in the hospital, so there was no question of any entry being made in the General Admission Register of that hospital. He proved before the Inquiry Officer entries from the Register of the operation theatre wherein name of the petitioner appears showing that the operation had been performed on him by his brother. He examined his brother as a witness, who deposed that he did perform the said operation on the petitioner on that day. He also proved his certificate regarding carrying out of the sperm test on February 11, 1983, directly through the microscopic examination. The Inquiry Officer had held this charge against the petitioner on the ground that at first no entries appeared in the Admission Register of the hospital regarding petitioner's admission in that hospital and that no entry appeared in the Pathology Lab. Register. But the Inquiry Officer forgets that the petitioner was not actually admitted in the hospital. So, mere fact that his name did not appear in the Admission Register would not belie the case of the petitioner that he was operated upon by his brother in that hospital on that day. Even departmental witness Dr. Srivastava who appeared as SW2 admitted that sperm test could be done by direct microscopic examination. So, mere fact that no Chemical was available in that hospital for carrying out the sperm test with the help of Chemical is of no consequence, once it is admitted by the departmental witness that the sperm test could be done by direct microscopic examination. Dr. Srivastava was on leave admittedly on the day the operation was performed on the petitioner in that hospital. So, he could not have possibly any knowledge whether such operation was performed on the petitioner on that day or not. It is not disputed that the vasectomy operation is now a very simple operation and does not require any hospitalisation or even any rest. So, mere fact that the petitioner had travelled from Varanasi to Delhi on the day he was operated upon would not lead any prudent man to draw an inference that in fact the petitioner was not operated upon at all. It is admitted by Shri Anil Khanna that in case any suspicion had arisen regarding the fact whether any operation had been done or not the petitioner could have been got physically examined from any expert to verify the fact whether any vasectomy operation on him had been performed or not; but no such steps were taken. It is true that with the passage of time the traces of the operation on the body may disappear and it may become difficult for any expert to opine with any certainty as to the period them operation was performed. But when the petitioner had put up his claim for getting the benefit of such operation and any doubt had arisen, it would have been advisable for that department to have got the petitioner examined from an expert immediately so that it could be verified whether he had undergone such vasectomy operation recently or not. The Inquiry Officer had ignored on the basis of some conjectural suspicions the Operation Theatre Registrar (copy Exs. D1 and D2) which do show that the operation was performed on the petitioner. No prudent man could have come to any conclusion from the evidence led before the Inquiry Officer that, in fact, petitioner had not been operated upon at all on that day. So, the Inquiry Officer had held the charge against the petitioner on ignoring material evidence and the circumstances appearing in the case. So, this finding of the Inquiry Officer also stands vitiated. I hold this point in favor of the petitioner.