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Judgment
JYOTI SINGH, J. (ORAL)
By this writ petition, Petitioner assails the enquiry report dated 31.08.2021, penalty order dated 20.10.2021 as well as order of the Appellate Authority dated 29.11.2022 and the Review Order dated 12.09.2023. Writ of Mandamus is sought for a direction to the Respondent to reinstate the Petitioner in service with all consequential benefits including back wages, etc.
Facts to the extent necessary, shorn of unnecessary details and as averred in the writ petition are that on qualifying the competitive examination, Petitioner was appointed as Management Trainee on 23.12.2013 with the Respondent. Between 2013 to 2016 Petitioner worked as Scale-I Officer in Rural Branch of the Bank at Gautam Budh Nagar and was posted on 01.07.2016 at Branch Office Chander Nagar. On 04.05.2019, Petitioner was promoted in Scale-II and posted at Navyug Market.
Petitioner was placed under suspension on 18.02.2020 in contemplation of a disciplinary inquiry but the suspension was revoked on 23.03.2020. While the Petitioner was posted as Scale-II Officer, major penalty chargesheet dated 20.07.2020 was issued from Circle Office, Ghaziabad by Chief Manager (HRD) on 29.08.2020 under Regulation 6 of Punjab National Bank Officer Employees’ (Discipline & Appeal) Regulations, 1977 (‘1977 Regulations’). As per the allegations, there were irregularities in NPA accounts of Mr. Shivam and Mr. Sunil Kumar at Branch Office, Chander Nagar. Lapses were alleged on the part of the Petitioner resulting into the accounts being rendered NPA and making it difficult to recover the money albeit there were no allegations of dishonest intention, corruption, undue gain or fraud, etc.
Petitioner avers that along with the chargesheet, there was a list of documents/witnesses but not a single witness was named in the said list. Petitioner did not admit the relied upon documents. On 15.12.2020, the Presenting Officer (‘PO’) informed the Inquiry Officer (‘IO’) that the Department will produce two witnesses but eventually a statement was made that no witness will be produced. After the inquiry commenced, first supplementary charge sheet was issued by the Disciplinary Authority on 07.01.2021 without any reason, whereby some more bank accounts were added to the charges. Subsequently, without any reason or justification, a second supplementary charge sheet 21.06.2021 was served on the Petitioner adding a new charge of missing EM files of loan accounts which had nothing to do with the original chargesheet. The entire inquiry proceeded without examination of witnesses by the PO and the inquiry report was rendered based on documentary evidence only.
Petitioner states that inquiry report was tendered on 31.08.2021 partially proving Articles of Charge I, II and III that too without any evidence to establish the allegations. Petitioner gave her representation to the Disciplinary Authority pointing out several defects in the inquiry and denying the charges, however, without delving into the objections raised, including one on proportionality of penalty, the Disciplinary Authority imposed the penalty of ‘removal from service’. The appeal and the review petition filed by the Petitioner were also dismissed by a non-speaking order compelling the Petitioner to file the present writ petition.
Mr. Shanker Raju, learned counsel for the Petitioner inter alia contends that not even a single witness was produced by the Respondent before the IO to prove its case. Perusal of the Charge Memorandum shows that a list of witnesses was appended thereto but no witness was named and the procedure adopted is in violation of Regulation 6(3) of 1977 Regulations. An attempt was made before the IO to produce two witnesses but eventually not a single witness was examined by the PO. It is urged that Regulation 6(3) provides that where it is proposed to hold an inquiry, Disciplinary Authority shall frame definite and distinct charges based on the allegations and the Articles of Charge together with statement of allegations, list of documents relied upon along with copy of such documents and list of witnesses along with copy of statements of witnesses, if any, on which they are based, shall be communicated in writing to the officer employee. Law requires that in departmental proceedings also if documents are tendered, they must be proved by examining witnesses and in this context, learned counsel relies on the judgments of the Supreme Court in Khem Chand v. Union of India and Others, 1957 SCC OnLine SC 6; State of U.P. and Another v. T.P. Lai Srivastava, (1996) 10 SCC 702; Roop Singh Negi v. Punjab National Bank and Others, (2009) 2 SCC 570; and State of Uttar Pradesh and Others v. Saroj Kumar Sinha, (2010) 2 SCC 772. Reliance is also placed on the judgment of this Court in S.K. Jain and Others v. Punjab National Bank and Others, W.P. (C) No. 4011/2012, decided on 29.08.2024.
Mr. Rajat Arora, learned counsel for the Respondent opposes the aforesaid contention on the ground that list of witnesses was appended to the chargesheet and copy was also furnished to the Petitioner albeit he concedes that not a single witness was named therein and/or examined during the inquiry. The argument is that the charges levelled against the Petitioner are grave and serious and only for the reason that there were no witnesses to prove the documents, which at best is a procedural flaw, if any, Petitioner cannot be exonerated. Strict rules of evidence are not applicable in domestic inquiries. PO had tendered plethora of documents to prove the charges and there is no hard and fast rule that charges in a departmental inquiry cannot be proved by tendering documents. It is also contended that Petitioner did not deny the documents and participated in the inquiry without a demur and/or raising any issue on the absence of witnesses. Moreover, it is a settled law that standard of proof in a departmental inquiry is only preponderance of probabilities and once the documents tendered before the IO reflected the misconduct of the Petitioner and the charges were established, Petitioner cannot escape the rigors of the punishment merely because oral evidence was not led by the Respondent.
Mr. Arora distinguishes the judgment in S.K. Jain (supra) on two grounds. Firstly, he submits that while in case of S.K. Jain (supra), there was no list of witnesses, in the present case, along with the chargesheet, list of witnesses was appended and it was mentioned that the witnesses will be produced at the relevant time. Secondly, purely procedural errors cannot vitiate the inquiry unless any prejudice is shown by the CO, which the Petitioner is unable to demonstrate in the present case and in this context, reliance is placed on the judgment of the Supreme Court in Debotosh Pal Choudhury v. Punjab National Bank and Others., (2002) 8 SCC 68, wherein the Supreme Court while examining Regulation 6(5) of 1977 Regulations, observed that fulfilment of some of the requirements is purely procedural in character and unless in a given situation, the aggrieved party makes out a case of prejudice or injustice, mere infraction of the Regulation will not vitiate the entire inquiry.
Heard learned counsel for the parties and examined their rival submissions.
The short question arising before this Court is whether in a departmental inquiry only the documents can be relied upon, without producing a single witness to prove the documents and establish the charges, especially when neither the documents nor their contents are admitted by the CO. The answer to this question need not detain this Court as this issue is longer res integra. However, before proceeding further, I may only refer to a few judicial precedents on the scope and ambit of exercise of power of judicial review by the High Court under Article 226 of the Constitution of India when considering a challenge to a departmental inquiry. In B.C. Chaturvedi v. Union of India and Others, (1995) 6 SCC 749, a three-Judge Bench of the Supreme Court held as follows:-
“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 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 [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] 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 be issued.”
These well-settled principles were reiterated from time to time and it is clear that a Constitutional Court cannot assume the role of an Appellate Authority and can only evaluate the decision-making process as also examine if the principles of natural justice or required procedure for conduct of an inquiry were followed so as to ensure that no manifest injustice is caused to the Charged Officer. In Pravin Kumar v. Union of India and Others, (2020) 9 SCC 471, the Supreme Court observed that the jurisdiction of a Constitutional Court is circumscribed by limits of correcting errors of law, procedural errors and violations of principles of natural justice but judicial review is not analogous to venturing into merits like an appellate authority.
It is equally well-settled that in departmental/domestic inquiries, strict rules of evidence do not apply but being quasi-judicial proceedings, IO has a duty to carefully examine the evidence led before him and he cannot merely rely on the documents filed by the PO to hold the Charged Officer guilty. Inference on facts by an IO must be based on some evidence, which is led before the IO in compliance of the principles of natural justice and IO is expected to ensure that the evidence presented by the department is sufficient to prove the charge. [Ref.: Anil Kumar Dhyani v. Union of India & Ors., 2017 SCC OnLine Del 9911].
In the present case, there is no dispute that the Charge Memorandum was issued to the Petitioner under Regulation 6 of 1977 Regulations and along with the Charge Memorandum, list of documents/witnesses was enclosed as Annexure-III. However, in the list of witnesses, no witness was named. It was only stated that an officer, present or previous, of the Branch may be called as a witness. Petitioner avers that at the initial stage of the inquiry, PO had expressed his desire to produce two witnesses, namely Utkarsh Kumar and Deepak Kumar, but subsequently the IO was informed that no witness will be examined and as a matter of fact, PO only tendered documents. The inquiry report also indicates that the findings are based purely on documentary evidence. Be it noted that Petitioner never admitted the documents or the contents of the documents, tendered by the PO . In the absence of admission of the documents/their contents, it was imperative for the PO to examine oral witnesses to prove these documents with an equal opportunity to the Petitioner to thereafter cross-examine the witnesses. The procedure followed by the PO/IO was therefore, violative of Regulation 6(3) of 1977 Regulations which mandates that together with the Articles of Charge, list of documents and list of witnesses relied upon shall be provided to the CO. For the ease of reference, relevant part of Regulation 6(3) is extracted hereunder:
“6. Procedure for Imposing Major Penalties :
…….. …. …..
(3)Where it is proposed to hold an inquiry, the Disciplinary Authority shall, frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, list of documents relied on along with Copy of such documents and list of witnesses along with copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit, within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defense;
Provided that wherever it is not possible to furnish the copies of documents, disciplinary authority shall allow the officer employee inspection of such documents within a time specified in this behalf. ”
In light of Regulation 6(3), the inevitable conclusion is that the IO has followed the procedure prescribed therein more in breach than in compliance. The Supreme Court has time and again held that where no oral evidence is led to prove the documents relied upon by the prosecution, documents cannot be taken into consideration to conclude that the charges are proved against the Charged Officer. I may, at this stage, allude to the judgment of the Supreme Court in Roop Singh Negi (supra), relevant paragraphs of which are as follows:-
“14.Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. xxx xxx xxx
17.In Moni Shankar v. Union of India [(2008) 3 SCC 484 : (2008) 1 SCC (L&S) 819] this Court held: (SCC p. 492, para 17)
“17.The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.””
Reiterating the principle, the Supreme Court in Saroj Kumar Sinha (supra) held as under:-
“27.A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
28.An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29.Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
30.When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31.In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p. 969)
“… Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.””
Relevant would it be to refer to the judgments of the Division Benches of this Court on the same proposition of law. In Union of India and Others v. Ritu Chaudhary, 2019 SCC OnLine Del 12063, the Division Bench held as follows:-
“13.The Court is not persuaded by any of the above contentions of the Petitioners. The Court notes that under Rule 14(3) & (4) of the CCS (CCA) Rules, it was incumbent, where the Government proposes to hold an inquiry, to draw the substance of imputations which would contain “a list of documents by which and a list of witnesses by whom, the Articles of Charge are proposed to be sustained”. The said rule reads as under:
“14 (3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i)the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii)a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a)a statement of all relevant facts including any admission or confession made by the Government servant;
(b)a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4)The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person”.
14.Rule 14 (4) also envisages serving upon the Government servant the copy of the Articles of Charge which would include “the list of documents and witnesses by which each Articles of Charge is proposed to be sustained”.
15.The following observations in LIC of India v. Ram Pal Singh Bisen, (2010) 4 SCC 491 are relevant in this context:
“20.Thus, the question that arises, for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits.
21.Despite our persistent requests made to the learned counsel appearing for the appellants they have not been able to show compliance of Order XII Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof. …..
26.We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27.It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing, of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
Although, as pointed out by learned counsel for the Petitioners, in disciplinary inquiry proceedings the rules of the CPC and the Evidence Act may not strictly apply, it is basic that the mere production of a document is not sufficient even in a disciplinary inquiry. There has to be some witness to prove such a document. Without a witness to prove the documents, the Enquiry Officer cannot take it on record as a genuine document. In the present case in the absence of any list of witnesses, there was no means by which the documents could have been proved by the Department in the inquiry proceedings.
In the present cases, if indeed the MoC refer to documents, the originals of which were not available with the Department, and the list of the names of the witnesses who were sought to be examined to prove the above documents, was not appended, clearly, the holding of the enquiry would itself become a mere formality. As rightly pointed out by the CAT, if in the absence of original documents and witnesses, an Enquiry Officer was to find the charges to be proved, such a finding would obviously be perverse and unsustainable in law. In other words, by allowing the disciplinary proceeding to continue on the basis of the subject MoCs, the Court or the Tribunal, as the case may be, would be effectively directing a wasteful exercise to be undertaken, which would end up being invalidated on obvious grounds.”
In Union of India v. Shameem Akhtar, W.P.(C) 8726/2015, decided on 11.09.2015, the Division Bench, relying on the judgment of the Supreme Court in Kuldeep Singh v. The Commissioner of Police and Others, (1999) 2 SCC 10, held as follows:
“15.It is settled law that the charges levelled against a delinquent official is to be proved in the inquiry before any penalty is imposed. Sub-Rule (3) of Rule 14 provides that the Articles of Charge are to be supported with documents and proved by witnesses during the hearing. In our view, this in-built safeguard has been provided to allow a delinquent employee to cross-examine the witnesses and to rebut the allegations against him. In the absence of any witness and in the absence of any opportunity to cross-examine a witness would be against the canon of natural justice and the same cannot be treated as a mere formality.”
In A.K. Saxena v. Union of India & Ors., W.P.(C) 3127/2014, decided on 10.08.2016, the Division Bench was again called upon to decide the legality of a departmental inquiry and one of the issues was that Memorandum of Charge was without a list of witnesses. Relying on the judgments in Roop Singh Negi (supra) and Saroj Kumar Sinha (supra), the Division Bench held that mere production of documents was not enough and contents of the documents have to be proved by examining the witnesses as this is the requirement of principles of natural justice albeit provisions of Evidence Act may not be strictly applicable to departmental proceedings. To the same effect are the judgments of the Division Benches of this Court in Union of India and Others v. Surender Kumar, 2023 SCC OnLine Del 3414; Anil Kumar Dhyani (supra) and Union of India v. Man Singh, 2018 SCC OnLine Del 7298. It would be relevant to refer to some passages from the judgment in Anil Kumar Dhyani (supra) as under:
“16.We have heard learned counsel for the parties and considered their rival contentions. From the facts noticed hereinabove, it is clear that in the chargesheet itself, the Respondents have clearly stated, that they did not propose to examine any witness. The short question of simple nature, but considerable importance, which arises for our consideration in the present case is as to whether in a domestic inquiry, documents can be relied upon to hold the employee guilty, without producing even a single witness to prove those documents and that too when the delinquent employee does not admit those documents.
17.Though it is well settled that in a domestic inquiry, strict rules of evidence do not apply and the inquiry officer is not expected to write a judgment like a Judge of a Court but it is also equally a well settled proposition, that the domestic inquiry is a quasi judicial proceeding and the inquiry officer, while performing this quasi judicial function, has a duty to carefully examine the evidence led before him and he cannot merely rely on the documents filed by the Presenting Officer to hold the delinquent employee guilty. Inference on facts by an inquiry officer must be based on some evidence, which is led before the inquiry officer in compliance of the principles of natural justice and he is expected to ensure that at least the evidence presented by the management, is sufficient to hold that the charge is proved.
18.Coming to the facts of the present case, we find that the Petitioner had specifically denied the documents on which reliance had been placed by the Respondents, and he had repeatedly requested for production of original documents, so as to enable him to carry out admission/denial of the documents relied upon. It is evident that the documentary evidence relied upon in the chargesheet, was not admitted by the Petitioner employee. In such a situation, in our considered view, it was imperative for the Respondents management to, at least, examine some witness to exhibit those documents before the inquiry officer, and only when the documents were exhibited through a witness, before the inquiry officer, and sufficient opportunity granted to the charged officer to cross-examine the witness, that reliance could have been placed on the same to hold the Petitioner guilty. xxx xxx xxx
23.In fact, from a perusal of the judgment of the Apex Court in the case of State Bank of India v. Narendra Kumar Pandey (supra), which has been relied upon by the Respondents, it becomes evident that only when the documents are uncontroverted, it is open to the inquiry officer to accept the same, to hold the employee guilty even without examining any witness. In a case where the documents are not admitted by the delinquent employee, the same have to be proved by the management by leading oral evidence and in the absence of any witness, the same cannot be relied upon by the inquiry officer while arriving at his finding in respect of the charges.”
Mr. Arora makes a submission that Petitioner did not deny the documents and therefore, there was no requirement of producing witnesses to prove them. This contention merits rejection. Petitioner did not admit the documents or their contents during the course of inquiry and in these circumstances, oral evidence was required to be led to prove the documents. In Life Insurance Corporation of India and Another v. Ram Pal Singh Bisen, (2010) 4 SCC 491, the Supreme Court held that even an admission of document in evidence does not amount to its proof. Mere marking of exhibits on documents does not dispense with their proof.
The Supreme Court in Saroj Kumar Sinha (supra) held that an IO acting as a quasi-judicial authority is an independent adjudicator and his function is to examine the evidence presented and to see whether the unrebutted evidence is sufficient to hold that the charges are proved. Since no oral evidence has been led in the present case, it can be safely held that the documents tendered by the Department were not proved and the charge cannot be held to be established. Consequently, the order of the Disciplinary Authority dated 20.10.2021, imposing the punishment ‘Removal from service’ as well as the order of the Appellate Authority dated 29.11.2022 and order dated 12.09.2023 passed in the review petition cannot be sustained. Reliance by Mr. Arora on the judgment in Debotosh Pal Choudhury (supra), cannot aid the Respondent in the present case. As rightly argued by Mr. Raju not producing witnesses during the course of inquiry is not a mere technicality or a procedural violation. Witnesses are produced by the PO to establish the charges, which onus lies on the Department. If the witnesses are not produced and the charges are not established, the CO cannot be held guilty and this cannot be compared with a procedural violation as of the kind referred to by the Supreme Court in the said judgment. If the witnesses are not produced, the onus cannot be shifted to the CO to show prejudice unlike a case where an inquiry report is not furnished before passing the punishment order.
In view of the aforementioned judgements and in the facts of this case, where no witnesses were examined by the Respondent, the impugned orders are quashed and set aside. It is left open to the Respondent to take recourse to de novo inquiry, if so advised, in accordance with law, from the stage of issuance of charge sheet, with a caveat that if the Respondent is unable to comply with the legal requirement of leading oral evidence after producing witnesses for the reason that witnesses are unavailable, they should not reopen the issue. In case the Respondent decides to close the chapter and draw the curtains, Petitioner will be reinstated in service with all consequential benefits as per law. The decision will be taken by the Respondent within a period of three months from today. In case the Respondent is advised and decides to proceed from the stage of issuance of chargesheet in line with the legal requirements, Petitioner will be treated as under deemed suspension and paid allowances in accordance with law.
Writ petition stands disposed of in the aforesaid terms.