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2. The charge-sheet alleged that the appellant had committed misconduct by (i) not complying with the direction of the Election Commission; (ii) proceeding on leave without sanction thereof; (iii) failing to take part in the pulse polio programme and giving threats for legal action to the Senior Assistant of the Civil Surgeon, Sangrur2; and

(iv) not complying with the orders of the superior officers.

3. Consequent to pendency of the disciplinary proceedings, an order was issued on 31st March, 2017 refusing the appellant extension of service; instead, the appellant was relieved of his duty and made to retire on 31st March, 2017 (afternoon). It was recorded in the said order that such retirement would not affect the disciplinary proceedings pending against the appellant; also, if any amount is recoverable from him, the GoP would have the right to recover such amount.

25. In course of cross-examination, PW-1 stated that no call detail is available regarding the telephonic message purportedly given by the Senior Assistant to the appellant and it is only the Senior Assistant who would be in a position to throw light because PW-1 did not have any record of conversation. It was also admitted that on cancellation of leave, separate letter was not written to the appellant; also that, as per the record, no duty had been assigned to the appellant in the pulse M.D., PHSC polio programme from 29th January, 2017 to 31st January, 2017 or by the Election Commission. The letter dated 6th January, 2017 of the M.D., PHSC did not prohibit grant of leave to Senior Medical Officer; however, it prohibited grant of leave to specialist Doctor/General Medical Officer and para-medical staff, and leave to them could only be granted in special situations upon obtaining the approval of the Director, Health. PW-1 reiterated, while responding to a question as to the time when leave of the appellant was cancelled, that the Civil Surgeon cancelled the leave on 27th January due to Election Code and pulse polio programme but that there is no record regarding time. He also admitted the absence of any Government Order requiring communication of non-sanction of leave through telephone and not in writing. He was unaware as to whether the appellant had been charge- sheeted for keeping him away “from the fruits of extension in service”.

29. The Inquiry Officer, prior to recording his conclusion as extracted in paragraph 5 (supra) found the following facts to have come to light. We consider it appropriate to reproduce the same from the report, reading as follows:

“1.The Delinquent officer on 27-1-2017 after getting the leave of 28-1-2017, 30-1-2017 and 31-1-2017 along with station from 27-1-2017 to 2-2-2017 received in the office of  Civil Surgeon, Sangrur, went on leave without getting the same sanctioned, when in those days election code was going on and pulse polio programme was also going on. In this regard, as per the directions issued by Election commission/Health Department, the leave only could only be availed, in special circumstances, after getting prior permission from Director, Health Services. As per the rules, no leave can be availed as a right. Powers are empowered to the competent authority to sanction or not to sanction the leave. The argument by the Delinquent that there was no duty of him in election and pulse polio, is not acceptable. During the election and pulse polio, it is the duty of the supervisory officer to maintain the health services and to provide duties to the departmental employees and to assure the regular supply of medicines and to maintain cold chain etc. Being Senior Medical Officer and being incharge of an organization, it was the duty of the Delinquent officer that he during the elections and pulse polio programme, leads the officers/officials of his department and supervise their works so that these important programmes of the Government can be fulfilled successfully. But on the part of Delinquent officer, this was not done and did not take part in pulse polio programme. So far as the charge to give threat to take legal action against Sh. Rakesh Kumar , Senior Assistant office of Civil Surgeon, Sangrur, in this regard neither the concerned Senior Assistant has been produced as a witness nor any record or detail of call regarding conversion on telephone with the Delinquent has been produced by the Prosecution. Because the conversation of the concerned Senior Assistant of the office of Civil Surgeon had taken place 'With the Delinquent, which, as per the record, was brought by him in the notice of Civil Surgeon. But hear say evidence as per the Indian Evidence Act cannot be admitted as a proof. Therefore, to give threats from the Delinquent Doctor to Senior Assistant, office of Civil Surgeon, Sangrur to take legal action, due to non-submission of any proof by the PO, this charge is not proved.”

39. That the appellant did not comply with the directions of the Election Commission and did not participate in the pulse polio programme constitute the first charge and the first part of the third charge, respectively. The second part of the third charge of the appellant having threatened the Senior Assistant has not been found to be proved. It is the clear finding of the Inquiry Officer, based on the evidence on record, that the appellant was not assigned any duty in connection with election duty and pulse polio programme during the period he wished to avail leave to attend court proceedings before the High Court. Insofar as defiance of Election Commission’s directions by the appellant are concerned, no such written directions were part of the documentary evidence led before the Inquiry Officer. Though the letter of the M.D., PHSC was not made part of the evidence, we shall assume that the appellant, PW-1 and the Inquiry Officer knew the contents of the said letter and were aware that in view of the ensuing elections in February, 2017, instructions had been received not to grant leave to any officer unless permitted by the Director, Health. However, the appellant’s contention that public servants on the verge of retirement are not assigned election duty was not shown to be incorrect and untenable. Rather curiously, the Inquiry Officer resorted to ingenuity to hold the appellant guilty. As is evident from the report, the prosecution having failed to establish that the appellant had been assigned election duty as well as duty associated with the pulse polio  programme, the Inquiry Officer went on record to hold the charges under consideration proved by referring to what was, in his perception, the duty of a senior medical officer who has been in charge of an organisation. It needs no discussion that the Inquiry Officer found the appellant guilty for a perceived failure to perform a moral duty. Not only was it completely extraneous, but such a finding was clearly at variance with the charge levelled against the appellant. We hold that holding the appellant guilty of a perceived failure to perform a duty not being the charge in respect of which any opportunity of explanation was given, such a finding could not have been taken into consideration by the Disciplinary Authority to impose penalty on the appellant.