REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2106 OF 2012 (ARISING OUT OF SLP(C)NO.15381 OF 2006)

KRUSHNAKANT B. PARMAR         … APPELLANT

Versus

UNION OF INDIA & ANR.       … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

2. The appellant, who was working as Security Assistant, was proceeded  

departmentally on 2nd September, 1996 for the following charge:

“While  functioning  as  SA(G)  in  the  office  of  Deputy  Central   Intelligence  Officer,  Palanpur,  under  Subsidiary  Intelligence  Bureau, Ahmedabad, unauthorisedly absented from duty between  3.10.1995 and 7.11.1995,  9.11.1995 and 10.12.1995 and from  10.12.1995 to 2.8.1996, thereby violating Rule 3(1)(ii) 3(1)(iii)   of Central Civil Services (Conduct) Rules, 1964.”

3. On receipt  of charge-sheet  the appellant  denied the allegation by his  

reply  dated  7th October,  1996 and also  alleged  bias  against  his  Controlling  

Officer, Mr. P. Venkateswarlu with specific stand that he was prevented by  

him from signing  the  attendance  register  and to  attend  the  office.  He  also  

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explained reasons of absence for certain period for which he had applied for  

leave.   

4. During the pendency of  the departmental  proceedings,   the appellant  

was  transferred  to  another  place  which  he  challenged  before  the  Central  

Administrative Tribunal alleging bias against his superior Officer.  The Central  

Administrative  Tribunal  by  order  dated  15th November,  2000  set  aside  the  

order by holding ‘the order of transfer is vitiated due to malice in law and fact’  

which was affirmed by the Gujarat High Court on 17th August,  2001. After  

about seven years Inquiry Officer submitted a report on 28th April, 2003 and  

held  that  the  charge  has  been  proved  against  the  appellant  beyond  all  

reasonable doubt, holding him guilty of violating Rule 3(1)(ii) and 3(1)(iii) of  

Central Civil Services (Conduct) Rules, 1964.

5. A  copy  of  the  Inquiry  Report  was  forwarded  to  the  appellant  who  

submitted a reply on 13th July, 2003 and raised following objections:

(i) Mr.  Venkateswarlu,  the  then  DCIO,  Palanpur  who  was  the  

complainant against the appellant about absence from duty, against whom  

the appellant has alleged malice and was the prime witness,  refused to  

attend the inquiry;  

(ii) the Report  of the Inquiry Officer is based on statements  of two  

prosecution witnesses, who have not proved the charges;

(iii) the Inquiry Officer failed to discuss the evidence relied on by him;

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(iv) the attendance register  for the relevant period was not produced  

and

(v) the defence taken by him that he was not allowed to attend duty  

has not been dealt with by the Inquiry Officer.

The Joint Deputy Director, SIB, thereafter, dismissed the appellant from  

service by an order dated 02.12.2003.

6. The  appellant  challenged  the  order  of  dismissal  before  Central  

Administrative  Tribunal  which  by  order  dated  4th May,  2004  refused  to  

entertain the application and allowed the appellant to avail alternative remedy  

of appeal. Accordingly, the appellant preferred an appeal on 17th May, 2004  

before the Director, Intelligence Bureau highlighting lapses committed by the  

Inquiry  Officer,  and  also  alleged  bias  against  the  controlling  officer  who  

prevented him from performing the duty and to sign the attendance register.  

The Appellate Authority without discussing the aforesaid objections rejected  

the appeal by order dated 30th November, 2011 and observed as follows:

“……..the undersigned has come to the same conclusion that  

the appellant should have been discharged from service under  

the  Temporary  Service  Rules  when  the  first  instance  of  

indiscipline on his part was noticed.

……….the  charge  against  the  appellant,  Shri  K.B.  Parmar  

that he remained absent unauthorisedly has been established  

beyond doubt……….

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Now,  therefore,  the  undersigned,  being  the  competent  

Appellate Authority hereby rejects the appeal dated 17.5.2004  

submitted  by  Shri  K.B.  Parmar,  against  the  order  of  

Disciplinary  Authority  dated  2.12.2003  both on  account  of  

being time-barred as well as having no merit and confirms the  

penalty of removal from service on the said Shri K.B. Parmar  

vide order dated 2.12.2003.”

7. The  appellant  challenged  the  order  of  punishment  and  the  appellate  

order  in  Original  Application  No.  619  of  2004  before  the  Central  

Administrative Tribunal which was dismissed by order and judgment dated 28th  

September, 2005 and affirmed by the Gujarat High Court.

8. Learned  counsel  appearing  on  behalf  of  the  appellant  has  taken  us  

through  records  including  report  submitted  by  the  Inquiry  Officer  and  the  

order passed by the Appellate Authority and argued that the Inquiry Officer  

failed  to  consider  the  relevant  evidence  produced  by  the  appellant  and  

misdirected himself in arriving at the finding of guilt against him.  He would  

further  contend  that  no  specific  finding has  been  given  with  regard  to  the  

charge that he violated Rule 3(1)(ii) and Rule 3(1)(iii) of the Conduct Rules.

9. Per  contra,  according  to  the  learned  counsel  for  the  respondents,  

departmental  inquiry  was  conducted  in  accordance  with  law,  and  after  

providing full opportunity to the appellant, on appreciation of evidence, as the  

Inquiry Officer held the appellant guilty, the Appellate Authority affirmed the  

same.  

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10. We have heard learned counsel for the parties. From a bare perusal of  

the charge memo and the Inquiry Report it  can be deduced that the Inquiry  

Officer proceeded on a wrong premise.  

The appellant  was principally charged for unauthorised absence from  

duty during three consecutive period: (i) 3rd October, 1995 to 7th November,  

1995 (36 days); (ii) 9th November, 1995 to 10th December, 1995 (32 days); and  

(iii) 10th December, 1995 to 2nd August, 1995 (234 days), in violation of Rule  

3(1)(ii) and Rule 3(1)(iii) of the Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil  

Services (Conduct) Rules, 1964.

11. The charge was  sought  to  be  proved by  respondents  on the  basis  of  

statement of three witnesses, namely, (i) Shri P. Venkateswarlu, DCIO, SIB,  

Hyderabad,  (ii)  Shri  B.P.  Jivrani,  ACIO-II,  Palanpur  and  (iii)  Shri  L.N.  

Thakkar, JIO-I(MT), Gandhidham, and seven documentary evidence, including  

attendance  register  of  the  office  of  DCIO,  Palanpur,   but  the  complainant  

refused to appear in the Inquiry in support of complaint and charge.

12. The records suggest that on 11th August, 1995, the appellant requested  

the  respondents  to  transfer  him  from  Palanpur  to  any  nearest  place  at  

Ahmedabad or Nadiad or Anand which was accepted by respondents and an  

order  of  transfer  was  issued  by  the  respondents  on  21st August,  1995  

transferring the appellant to the office of DCIO, Nadiad with immediate effect.  

On 25th August, 1995,  the Joint Assistant Director, SIB ordered to release the  

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appellant from Palanpur to join duty at Nadiad with effect from 31st August,  

1995. In view of such order the appellant was relieved and joined at Nadiad.  

However,  the  order  of  transfer  was  cancelled  by  the  respondents  on  4th  

September,  1995  and  he  was  transferred  at  a  distance  place  which  was  

challenged  by  him  before  the  Central  Administrative  Tribunal.   After  

cancellation  of  the  order  of  transfer  the  appellant  sent  a  complaint  on  18th  

September,  1995  before  the  authorities  that  the  DCIO,  Palanpur,  Mr.  P.  

Venkateswarlu was not allowing him to join duty.  The order of transfer was  

challenged  by  him before  the  Central  Administrative  Tribunal,  Ahmedabad  

alleging  bias  against  Mr.  Venkateswarlu,  DCIO,  Palanpur,  in-charge  of  the  

office  which  was  accepted  by  the  Central  Administrative  Tribunal  and  the  

order  of  transfer  was  set  aside.   Thereafter  appellant  joined  duty  on  11th  

December, 1995 and proceeded on leave for 11 days due to illness of his father.  

13. The Inquiry Officer noticed the aforesaid facts and held the appellant  

was unauthorisedly absent between 3rd October, 1995 and 7th November, 1995;  

9th November,  1995 and 10th December,  1995; 10th December,  1995 and 2nd  

August, 1995.  However, while coming to such contention, the authority failed  

to decide whether such absence amounted to misconduct.  The evidence led by  

the  appellant  in  support  of  his  claim  that  he  was  prevented  to  sign  the  

attendance register and to perform duty though noticed the Inquiry Officer on  

presumption and surmises, held the charge proved.  

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14. Rule  3(1)(ii)  and  Rule  3(1)(iii)  of  Central  Civil  Services  (Conduct)  

Rules, 1964,  relates to all time maintaining integrity, devotion to duty and to  

do nothing which is unbecoming of a Government servant and reads as follows:

“Rule  3 – General.

(1) Every Government servant shall at all times--

(i) maintain absolute integrity;

          (ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.”

15. 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.

16. 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.

18. Absence from duty without any application or prior permission  may  

amount to unauthorised absence,  but it does not always mean wilful. There  

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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.

19. 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.

20. 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.  

21. 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:

“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   

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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.”

22. 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 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.

23. Mr. P. Venkateswarlu, DCIO, Palanpur, who was the complainant and  

against  whom  appellant  alleged  bias  refused  to  appear  before  the  Inquiry  

Officer in spite of service of summons.  Two other witnesses, Shri Jivrani and  

Shri L.N. Thakkar made no statement against the appellant, and one of them  

stated that he had no knowledge about absence of the appellant. Ignoring the  

aforesaid  evidence,  on  the  basis  of  surmises  and  conjectures,  the  Inquiry  

Officer held the charge proved.  

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24. Though  the  aforesaid  facts  noticed  by  the  Appellate  Authority  but  

ignoring such facts  giving reference of extraneous allegations which were not  

the  part  of  the  charge,   dismissed  the  appeal  with  following  uncalled  for  

observation:

“The appellant even avoided the basic training required for the   job and asked JAD Ahmedabad to send all the training papers   for  his  training  at  IB  Training  School,  Shivpuri  (Madhya  Pradesh) to his residence at Ahmedabad. ‘An untrained officer  is of no worth to the department’.”

25. In the result, the appeal is allowed. The impugned orders of dismissal  

passed by disciplinary authority, affirmed by the Appellate Authority; Central  

Administrative Tribunal and High Court  are set  aside.  The appellant stands  

reinstated.  Taking  into  consideration  the  fact  that  the  Charged  Officer  has  

suffered a lot since the proceeding was drawn in 1996 for absence from duty  

for a certain period, we are not remitting the proceeding to the disciplinary  

authority  for  any further action.   Further,  keeping in view the fact  that  the  

appellant has not worked for a long time we direct that the appellant be paid  

50% of the back wages but there shall be no order as to costs.  

……………………………………………….J.                 ( G.S. SINGHVI )

……………………………………………….J.          ( SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, FEBRUARY  15,  2012.

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