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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10913 OF 2016  (ARISING OUT OF SLP(C) NO. 25742 OF 2015)

H.P. STATE ELECTRICITY   BOARD LTD.  .... APPELLANT

  VERSUS

MAHESH DAHIYA            ....  RESPONDENT

JUDGMENT

ASHOK BHUSHAN. J

Leave granted.

2. This Appeal has been filed by H. P. State

Electricity Board, questioning   the judgment of

Division  Bench  of  Himachal  Pradesh High  Court  dated

09.04.2015 in LPA No. 340 of 2012. Letters Patent

Appeal was filed by appellant against the judgment and

order of learned Single Judge dated 09.04.2012 in Writ

Petition CWP No.522 of 2010 by which judgment the writ

petition filed by the respondent challenging the order

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of punishment of compulsory retirement as well as order

of the Appellate Authority, dismissing the appeal were

set­aside with direction to reinstate the writ

petitioner forthwith with all consequential benefits.

Board was also directed to open the sealed cover and

promote the writ 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

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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  post­facto

sanction which was granted.   On 30.07.2005, writ

petitioner submitted a leave application on medical

ground with permission to leave station. Without

awaiting  for sanction  of the  leave,  writ  petitioner

left the station. With reference to leave application

dated 30.07.2005 submitted by the writ  petitioner, he

was advised vide letter dated 25.08.2005 of the Chief

Engineer to appear before the Medical Board. The Chief

Medical Officer D.D.U. Hospital, Shimla was requested

to constitute a Medical Board to examine and confirm

about the illness.   Writ petitioner was advised that

joining will be accepted only on production of the

medical certificate of the Medical Board.  The letter

was sent to his hometown Rohtak. When nothing was heard

from writ petitioner, telegrams were further sent on

07.09.2005, 30.09.2005 and 21.10.2005, asking the writ

petitioner to appear before the Medical Board. On

30.09.2005, writ petitioner was also given warning that

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disobedience will invite the disciplinary action.

Lastly, on 02.12.2005, writ petitioner was again

directed to appear before Medical Board, Shimla

otherwise disciplinary action will be initiated and the

matter has been viewed seriously by Board authorities.

Writ petitioner did not appear before the Board, and

consequently, he was placed under suspension by order

dated 21.01.2006. The writ petitioner obtained a

Medical­cum­Fitness Certificate from Rohtak and he

visited IGMC Shimla on 18.02.2006 for obtaining a

Medical Certificate.   IGMC Shimla   issued a medical

certificate on 18.02.2006. Joining report dated

20.02.2006 was submitted before the Superintending

Engineer (Op.) Circle, HPSEB. Writ petitioner on

27.02.2006 submitted a representation for revocation of

his suspension.   

3. The Board decided to hold a disciplinary

proceeding against the writ petitioner under Rule 14 of

CCS(CCA) Rules, 1965 (hereinafter referred to as

'Rules'). A Memo and Article of Charge dated 21.09.2006

was served on the writ petitioner. Writ petitioner

submitted a reply to the charges on 15.10.2006. An

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Inquiry Officer was appointed by Disciplinary Authority

who conducted the inquiry. In the inquiry the

department has produced oral evidence of two witnesses,

namely, Mr. S. D. Rattan, Director (Comm.) (PW­1) and

Shri Brij Lal Kiashta Section Officer (PW­2). writ

petitioner produced P.C. Sardana, retired Chief

Engineer as defence witness. Various documents were

produced by the department and the Inquiry  Officer

after holding eight hearings submitted an inquiry

report dated 29.12.2007.  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 Authority­cum­Whole 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 toaward major penalty of removal from

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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 penalty

of removal from service. The Disciplinary Authority

considered his explanation dated 15.04.2008 and came

to the opinion that charges against the writ

petitioner are proved, and a penalty of removal be

imposed. However, before imposing the penalty an

opportunity was provided to make a representation

within fifteen days by order dated 06.07.2009. Writ

petitioner submitted a representation on 21.07.2009.

Disciplinary Authority passed an order dated

21.08.2009. Disciplinary Authority considered the

representation dated 21.07.2009 and took a decision

to compulsory retire the writ petitioner and his

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period of absence was to be treated as  dies non.

Against the order communicated vide order dated

25.08.2009, writ petitioner filed an appeal on

09.09.2009 which appeal was dismissed by the

Appellate Authority vide its order dated 10.12.2009.

Aggrieved by the order dated 25.08.2009 and

09.09.2009, writ petitioner filed the writ petition

before learned Single Judge which writ petition had

been allowed by Single Judge by order dated

09.04.2012, challenging the said judgment Letters

Patent Appeal was filed which too has been

dismissed. Division Bench, while dismissing the

appeal came to the conclusion that Inquiry Officer

and the Disciplinary Authority have violated the

principle of natural justice, hence, the appeal

deserved to be dismissed. Appellate Court had

further observed that Inquiry Officer, while

submitting his report has not discussed the

statement of the defence witnesses who supported the

case of the writ petitioner.  

6. Learned Single Judge and the Division Bench

both came to the conclusion that copy of the inquiry

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report was supplied to the writ petitioner on

02.04.2008 whereas  Disciplinary Authority­cum­Whole

Time Members of the Board had already made up their

mind to impose a major penalty on the writ

petitioner even without supplying the copy of the

inquiry report which has prejudiced the writ

petitioner. The learned Single Judge has also held

that Disciplinary Authority failed to prove that

absence from the duty was willful nor any such

findings have been recorded by the Inquiry Officer,

whereas, the writ petitioner has submitted the

medical certificate to prove that he was suffering

from Tuberculosis(T.B.). Learned Single Judge had

also issued notice to Doctor Sharma of Rohtak who

had issued the certificate to the writ petitioner

who appeared before 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

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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 having been

proved  in  the  inquiry,  there  is no  error  in the

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punishment awarded on the writ petitioner. He

submitted that entire proceeding before the Inquiry

Officer and the Disciplinary Authority were

conducted in accordance with principle of natural

justice. A copy of the inquiry report was duly

served to the writ petitioner and he was given

opportunity to represent against the inquiry report.

He submitted that the mis­conduct on behalf of  such

senior officer cannot be condoned and both the

Courts below committed error in setting­aside the

orders of the punishment and directing the

reinstatement with all consequential benefits.

10. Learned counsel for the respondent submitted

that there being ample material on record to

indicate that writ petitioner was suffering from

tuberculosis, his absence from duty cannot be said

to be willful and such absence is not mis­conduct on

which punishment can be awarded. He further

submitted that writ petitioner could not appear

before the Medical Board due to his continued

illness, which cannot be taken as  factor  against

writ petitioner. He submitted that there was

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violation of principle of natural justice in the

proceeding as have found by courts below. Present is

not the case in which this Court may interfere with

the judgment of High Court.

11. We have considered the submission of the

learned counsel for the parties and perused the

records.  

12. The Division Bench after referring to several

judgments of this court, which we shall notice

hereinafter recorded its conclusion in paragraph 33,

34, 36 and 37 which are to the following effect:

“33. Applying the test to the instant case,   admittedly, the Inquiry Officer has not  discussed the evidence of the defence witness, who  though  was  a senior officer of the writ respondent­appellant.”

“34. The specific case of the   writ petitioner is that the Inquiry Officer/WTM and the Disciplinary Authority have violated the principles of natural justice and  had made up a mind to remove the writ petitioner­respondent herein from service and to throw him out, even without hearing him. Meaning thereby  prejudice has been caused to the   writ petitioner­respondent herein.”

“36. Applying the test to the instant case, one  comes  to  an inescapable  conclusion that the Inquiry Officer and the

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Disciplinary Authority have violated the principle of natural justice.”  

“37. In view of the discussions made hereinabove, 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

along­with letter dated 02.04.2008, whereas

Disciplinary Authority­cum­Whole 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 respondent­appellant  herein   

specifically, thus, admitted. It stand s 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.”

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“19. The writ petitioner has filed rejoinder and has explained all circumstances which have been taken as grounds by the appellant­writ respondent in the reply for conducting the inquiry and imposing the penalty upon the writ writ petitioner­respondent.”

14. The charge against the writ petitioner as

framed was to the following effect:

“That the said Er. Mahesh Dahiya while functioning as Sr. Executive Engineer [Elect] in the office of the Chief Engineer (Comm.] HPSEB, Shimla­4 during  the period from 2005­06 proceeded on leave on 30.07.2005 on medical ground.  Er. Dahiya was repeatedly directed vide Chief Engineer [Comm.] HPSEB, Shimla­4 letter dated 25.08.2005, 07.09.2005, 26.10.2005 and 02.12.2005 to  appear before the Medical Board but Respondent failed to do so. Thus, Dr.  Dahiya has willfully absented himself from official duties and has disobeyed the directions of his superiors. Respondent has therefore acted in a manner which is unbecoming of an officer of his status. The said   Er. Mahesh   Dahiya,   Sr.   Executive Engineer [Elect.] has thus violated the provisions of Rule­3[1](i)(ii) (iii) of CCS Conduct Rules, 1964 and which made him liable for disciplinary action under Rule­14 of CCS[CCA] Rules­1965.”

15.  From the facts of the present case, it is clear

that disciplinary proceedings were initiated against

the writ petitioner, after he has submitted an

application on 30.07.2005 for grant of medical leave

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with permission to leave the station. According to

Rule 7 of Central Civil Services  Leave Rules, leave

cannot be claimed as of right Rule 7 is as to the

following effect:

“7.Right to leave

(1) Leave cannot be claimed as of right. (2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant of it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant to.”  

16. It has also come on record that application for

leave on medical ground dated 30.07.2005 was not

supported by any medical certificate and medical

certificates from Rohtak and IGMC Shimla which have

been claimed by the writ petitioner, were claimed to

have been submitted after 20.02.2006, after the writ

petitioner was placed under the suspension.   The

writ petitioner who was a senior officer in the H.

P. Electricity Board was asked to appear before the

Medical Board in reference to his leave application

dated 30.07.2005. The sequence of events indicates

that first letter was written by the Chief Engineer

directing writ petitioner to appear before the

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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. The

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report of the Inquiry Officer has been brought on

record as annexure P­7, only one defence witness

appeared, namely, Engineer P. C. Sardana. In the

inquiry report, the statement of P. C. Sardana was

specifically noted in following words:

“Defence witness Er.P. C. Sardana Retd. Chief Engineer intimated that Er. Dahiya was suffering from Tuberculosis during June/July, 2005. Er. Sardana was also intimated that Er. Dahiya showed his inability to attend his superannuation, farewell party as he had to rush to hospital for check up.”

18. Having noticed by the Inquiry Officer the

statement of defence witness, the Division Bench was

not correct in its conclusion that defence was not

considered. The Inquiry Officer in his report has

extracted entire statement of Er. P.C. Sardana. The

defence witness has only stated that 30th  July was

his last day in the office on which date the writ

petitioner has expressed   his inability to attend

farewell party since the writ petitioner had to go

to Hospital for check up. The charges against the

writ petitioner were all based on events subsequent

to making leave application on 30th July, 2005. We,

thus, do not find any infirmity in the Inquiry

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Officer's report in respect to consideration of

evidence of defence witness Er. P.C. Sardana.

19.  The Division Bench further in para 36, as noted

above has come to the conclusion that Inquiry

Officer/Disciplinary Authority has violated the

principle of natural justice, but nothing has been

referred to in the judgment, either of the Division

Bench or learned Single Judge that how the principle

of natural justice have been violated by the Inquiry

Officer. Before Inquiry Officer, both parties led

oral and documentary evidence and were heard. The

observation of the Division Bench that natural

justice has been violated by the Inquiry Officer is

based on no materials.

20. The basis of coming to the conclusion by both

learned Single Judge and the Division Bench that

Disciplinary Authority has violated the principle of

natural justice is based on the fact that although

the inquiry report was sent to the writ petitioner

by letter dated 02.04.2008, the Disciplinary

Authority­cum­Whole Time Members have already came

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to the opinion on 25.2.2008 that writ petitioner be

punished with major penalty. The Division Bench of

the High Court has placed reliance on Union of India

and others v. R. P. Singh 2014 AIR SCW 3475.

21. In the above case the issue was, as to whether

non­supply of the copy of advise of U.P.S.C. to

delinquent officer at pre­decision stage violates

the principle of natural justice. This Court placed

reliance on the Constitution Bench judgment in

Managing Director, ECIL, HYDERABAD AND OTHERS Versus

B. KARUNAKAR AND OTHERS (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

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been laid down in the B.Karnukara's(AIR 1994 SC 1074) case. We may reproduce the relevant passage with profit: ­

 “Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.””

There can be no dispute to the above

preposition. The Constitution Bench in  Managing

Director, ECIL, HYDERABAD AND OTHERS Versus B.

KARUNAKAR AND OTHERS (1993) 4 SCC 727  after

elaborately considering the principle of natural

justice in the context of the disciplinary inquiry

laid down following in para 29, 30 (iv)(v):

“29. Hence it has to be held that when the enquiry officer is not the Disciplinary Authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the Disciplinary Authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled

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against him.  That right is a par t of the employee's right to defend himself against the charges levelled against him.  A denial of the enquiry officer's report before the Disciplinary Authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.”

“30. “(iv). In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of  principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non­Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and 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

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service and the inquiry is set aside because the report is not furnished to him, in some cases the non­furnishing 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 back­wages  in all cases is  to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice”

22. Present is not a case of not serving the

inquiry report before awarding the punishment rather

the complaint has been made that before sending the

inquiry report to the delinquent officer,

Disciplinary Authority has already made up its mind

to accept the findings of the inquiry report and

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decided to award  punishment of dismissal. Both the

learned Single Judge and the Division Bench on the

aforesaid premise came to the conclusion that

principle of natural justice have been violated by

the Disciplinary Authority. The Division Bench

itself was conscious of the issue, as to whether,

inquiry is to be quashed from the stage where the

Inquiry Officer\Disciplinary Authority has committed

fault i.e. from the stage of Rule 15 of the  CCS

(CCA) Rules  as non­supply of the report. Following

observations have been made in the impugned judgment

by Division Bench in para 21:

“Having said so, the core question is – whether the inquiry is to be quashed from the stage where the Inquiry Officer/Disciplinary Authority has committed fault, i.e. from the stage of Rule 15 of the CCS (CCA) Rules, i.e. non­supply of inquiry report, findings and other material relied upon by the Inquiry Officer/Disciplinary Authority to the writ writ petitioner­respondent herein to explain the circumstances, which were made basis for making foundation of inquiry report or is it a case for closure of the inquiry in view of the fact that there is not even a single iota of evidence, prima facie, not to speak of proving by preponderance of probabilities, that the writ petitioner has absented himself willfully and he has disobeyed the directions?”

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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

Versus UNION OF INDIA AND ANOTHER (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

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inquiry from the stage fault was found be not given.

On the scope of judicial review, the Division Bench

itself has referred to judgment of this Court

reported in M.V. BIJLANI VERSUS UNION OF INDIA AND

OTHERS (2006) 5 SCC 88.  This Court, noticing the

scope of judicial review in context of disciplinary

proceeding made following observations in para 25:

“It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi­criminal 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 quasi­judicial 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.”

25. The three Judge Bench of this Court in  B.C.

CHATURVEDI VERSUS UNION OF INDIA AND OTHERS 1995 (6)

SCC 749  had noticed the scope of judicial review

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with regard to disciplinary proceeding. Following

observations have been made in paras 12 and 13:

“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.   When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. 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 re­appreciate 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

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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 re­appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India V. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could issued.”

26. Both the learned Single Judge and the Division

Bench have heavily relied on the fact that before

forwarding the copy of the report by letter dated

02.04.2008 the  Disciplinary Authority­cum­Whole

Time Members have already formed an opinion on

25.02.2008 to punish the writ petitioner with major

penalty which is a clear violation of principle of

natural  justice.  We  are  of  the  view  that  before

making opinion with regard to punishment which is

to be imposed on a delinquent, the delinquent has

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to be given an opportunity to submit the

representation/reply on the inquiry report which

finds a charge proved against the delinquent. The

opinion formed by the   Disciplinary

Authority­cum­Whole Time Members on 25.02.2008 was

formed without there being benefit of comments of

the writ petitioner on the inquiry report. The writ

petitioner in his representation to the inquiry

report is entitled to point out any defect in the

procedure, a defect of substantial nature in

appreciation of evidence, any misleading of

evidence both oral or documentary. In his

representation any inputs and explanation given by

the delinquent are also entitled to be considered

by the Disciplinary Authority before it embarks

with further proceedings as per statutory rules. We

are, thus, of the view that there was violation of

principle of natural justice at the level of

Disciplinary Authority when opinion was formed to

punish the writ petitioner with dismissal without

forwarding the inquiry report to the delinquent and

before obtaining his comments on the inquiry

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report. We are, thus, of the view that the order of

the High Court setting aside the punishment order

as well as the Appellate order has to be

maintained.  

27. In view of the above discussion, we are of the

view that present is the case where the High Court

while quashing the punishment order as well as

Appellate order ought to have permitted the

Disciplinary Authority to have proceeded with the

inquiry from the stage in which fault was noticed

i.e. the Stage under Rule 15 of Rules. We are

conscious that sufficient time has elapsed during

the pendency of the writ petition before learned

Single Judge, Division Bench and before this Court,

however,  in  view  of  the  interim  order passed  by

this Court dated 31.08.2015 no further steps have

been taken regarding implementation of the order of

the High Court. The ends of justice be served in

disposing of this appeal by fixing a time frame for

completing   the proceeding from the stage of

Rule 15.

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28. We having found that principles of natural

justice have been violated after submission of the

inquiry report dated 29.12.2007 all proceedings

taken by the Disciplinary Authority after

29.12.2007 have to be set aside and the

Disciplinary Authority is to be directed to forward

the copy of the inquiry report in accordance with

Rule 15(2) of Rules 1965 and further proceedings,

if any, are to be taken thereafter.

29. In the result, the appeal is partly allowed,

the judgment of the High Court is modified in the

following manner:

(1) All proceedings of Disciplinary

Authority after submission of the inquiry

report dated 29.12.2007 including punishment

order dated 25.8.2009 and Appellate order

dated 10.12.2009  are set aside.

(2) The Disciplinary Authority shall

forward the inquiry report as per Rule 15(2)

of 1965 Rules. The writ petitioner be

allowed 15 days' time to submit his

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representation to the inquiry report.

(3) After receipt of representation of the

writ petitioner to the inquiry report, the

Disciplinary Authority may proceed and take

a decision in accordance with Rule 15 of

1965 Rules.

(4) The Disciplinary Authority shall

complete the proceedings and pass

appropriate orders within a period of three

months from the date of receipt of

representation of the writ petitioner to the

inquiry report.  

………………….…...........................J. (S. A. BOBDE)

.........….........…...........................J.       (ASHOK BHUSHAN)

NEW DELHI, NOVEMBER 18 , 2016.