TaxTMI 
TaxTMI 
2016 (11) TMI 1749
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....Petitioner to the post of Superintending Engineer, if he is found suitable by the Departmental Promotion Committee. The brief facts necessary for deciding this appeal are: The Appellant shall be referred to hereinafter as 'Board' and the Respondent as the 'writ Petitioner'. The writ Petitioner, a native of District Rohtak, Haryana was appointed as Assistant Engineer in the Corporation in the year 1983. He was promoted as Assistant Executive Engineer in 1989. He was sent on deputation to the Rural Electrification Corporation of India and posted at Delhi. In the year 2005, writ Petitioner was repatriated and posted at H.P. State Electricity Board, Shimla as Senior Executive Engineer. After repatriation, he remained on leave for 103 days. On 04.06.2005, writ Petitioner was admitted in IGMC Hospital, Shimla from where, he was discharged on 16.06.2005. Writ Petitioner obtained fitness certificate on 23.07.2005 from IGMC Hospital and joined his duties on 25.07.2005. After joining, he submitted leave application upto 23.07.2005 for post-facto sanction which was granted. On 30.07.2005, writ Petitioner submitted a leave application on medical ground with permission to leav....
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....9.12.2007. Inquiry Officer in his report after considering the evidence held the charge proved by stating the following: "Therefore, in my opinion Delinquent Officer failed to comply with the direction of his superiors for appearing before the Medical Board. As such the charge leveled against Er. Dahiya stands proved that he has willfully absented himself from official duties and has disobeyed the directions of his superiors. Charge No. 1 Proved. 4. The Disciplinary Authority-cum-Whole Time Members of the Board considered the inquiry report on 25.02.2008 and took following decision: The findings of the Enquiry Report were accepted by the WTM and it was decided toward major penalty of removal from service after following proper codal formalities. 5. By letter dated 02.04.2009, a copy of the inquiry report was forwarded to the writ Petitioner, asking him to submit his representation within fifteen days. Writ Petitioner submitted a reply dated 15.04.2008. Apart from other pleas, it was also stated that writ Petitioner had been supplied the decision of Whole Time Members of the Board where findings of the inquiry report have been accepted and it was decided to award major penal....
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....the learned Single Judge and proved his certificate. 7. This Court issued notice on 31.08.2015 and has also stayed operation of the judgment dated 09.04.2015. 8. Learned Counsel for the Appellant in support of appeal contends that Article of Charge against writ Petitioner consisted two parts of charge i.e. (i) Willful absentation from official duty and (ii) disobeying the directions of the superiors. He submitted that even if it is assumed for the arguments sake that writ Petitioner was absent from his official duties on account of the illness, there is no answer to the second charge of disobedience of the directions of the superiors. He contends that writ Petitioner submitted an application on 30.07.2005 for grant of medical leave with seeking permission to leave station and without awaiting sanction of the leave had left Shimla and continued to be absent for more than six months without leave having been sanctioned and in spite of written order from the Chief Engineer dated 25.08.2005, 07.09.2005, 30.9.2005, 21.10.2005 and 02.12.2005 failed to appear before the Medical Board disobeying the orders. 9. He submitted that the charge regarding disobedience of orders of superiors ha....
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....ereinabove, no case for interference is made out. Accordingly, the appeal is dismissed and the impugned judgment is upheld for the reasons recorded hereinabove. Pending applications, if any, are also disposed of. 13. The learned Single Judge heavily relied on the fact that the copy of the inquiry report was sent along-with letter dated 02.04.2008, whereas Disciplinary Authority-cum-Whole Time Members had already made up their mind to impose a major penalty. It shall be useful to refer to following observations of learned Single Judge made in para 18 and 19: 18. The facts do disclose that WTM had made up a mind to pass removal order without hearing the writ Petitioner. The grounds (G) and (H) contained in the writ petition have not been denied by the writ Respondent-Appellant herein specifically, thus, admitted. It stands corroborated and proved by the statement of Dr. Brij Sharma. Abovesaid facts read with order, dated 03.1.2011, passed by the learned Single Judge are factors leading to the conclusion that the absence of the writ Petitioner was not deliberate or willful, but was beyond his control. 19. The writ Petitioner has filed rejoinder and has explained all circumstances....
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....5. The sequence of events indicates that first letter was written by the Chief Engineer directing writ Petitioner to appear before the Medical Board on 25.08.2005 and thereafter there have been repeated telegrams and directions to appear before the Medical Board and warning was also issued on 30.09.2005 that disobedience will invite disciplinary action. 17. The charges, which have been leveled against the writ Petitioner were in two parts, as noted above i.e. willful absence from duties and disobedience of the orders of the superiors. Learned Counsel for Appellant confined his submission only to second charge that is willful disobedience of superior officers. He submitted that, even if, on account of illness of the writ Petitioner, his absence is not treated as willful, the second part of the charge is fully proved in the inquiry. During the inquiry, writ Petitioner was also asked, as to whether, at any point of time he has requested for constitution of a Medical Board at Rohtak which suggestion was replied in negative by him. As noted above, the Division Bench in para 31 to 33 has come to the conclusion that the Inquiry Officer has not discussed the evidence of defence witnesses.....
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....4 AIR SCW 3475. 21. In the above case the issue was, as to whether non-supply of the copy of advise of U.P.S.C. to delinquent officer at pre-decision stage violates the principle of natural justice. This Court placed reliance on the Constitution Bench judgment in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. (1993) 4 SCC 727 and laid down following in para 23: 23. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V. Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An inquiry report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid do....
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....whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the Rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. (v). The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the Rules of justice to a mechanical ritual. The theory o....
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....ng by preponderance of probabilities, that the writ Petitioner has absented himself willfully and he has disobeyed the directions? 23. The above observation clearly indicates that Division Bench was well aware that fault has occurred on the stage of Rule 15 of the CCS (CCA) Rules. The Division Bench had also relied on the judgment of this Court in Krushnakant B. Parmar v. Union of India and Anr. (2012) 3 SCC 178 where this Court had laid down that absence from duty without any application on prior permission may amount to unauthorised absence but it does not always mean willful. Learned Counsel for the Appellant, as noted above, has confined his submission on the proof of the second part of the charge and he has not invited us to enter into the issue as to whether absence of the writ Petitioner was willful or not. 24. As noted above, the Division Bench, having posed the question, as to whether, inquiry is to be quashed from the stage whether the Disciplinary Authority committed fault i.e. from the Rule 15, has not further dwelt upon the question nor has given any reason as to why the opportunity for holding the inquiry from the stage fault was found be not given. On the scope of ....
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.... When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on tha....