Rajeev Agarwal vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

The jurisdiction of this Court has been invoked by the petitioner seeking a writ of certiorari to quash the order of punishment passed by the third respondent dated 08.09.2011; for a writ of mandamus commanding the respondents to forthwith reinstate the petitioner in service; and to grant him all consequential benefits which he would have availed in the absence of the order terminating him from service.

Facts, to the limited extent necessary, are that the U.P. Cooperative Sugar Mills Federation Ltd. is the apex co-operative society funded and controlled by the Government of Uttar Pradesh under the U.P. Cooperative Societies Act, and the Managing Director of the federation is a senior IAS officer appointed by the State Government. The Government of Uttar Pradesh framed service Rules, for employees of the cooperative sugar federation, which were notified in the official gazette on 06.01.1989. These Rules continue to apply even to the State of Uttarakhand after its creation.

The petitioner was initially appointed as a Chief Accountant in the U.P. Cooperative Sugar Mills Federation Ltd. on 29.03.1984.

On the creation of the State of Uttarakhand on 09.11.2000, employees of the federation were called upon to give their options. Those, who exercised their options, were allotted to the new State in different sugar mills. The Uttarakhand Cooperative Sugar Mills Corporation Ltd. now controls the sugar mills, situated in the State of Uttarakhand, which were hitherto under the control of the U.P. State Sugar Corporation Ltd, and the U.P. Co-operative Sugar Mills Federation Ltd. The second respondent controls a total of six sugar mills. While the petitioner was working at the Kisan Sahakari Chini Mill Ltd., Nadehi, he was given officiating charge, of the Post of General Manager, in the month of May, 2003. He was transferred as in-charge General Manager, in the month of September, 2005, to the Kisan Sahakari Chini Mill Ltd., Sitarganj, where he joined duty on 21.09.2005.

Both these sugar mills, located in the Udham Singh Nagar district, are under the control of the District Magistrate who is the administrator for all co-operative sugar mills in the district.

While matters stood thus, charge of the post of General Manager was divested from the petitioner on 11.04.2008, and was handed over to Mr. B.S.

Rana, General Manager, Kisan Sahakari Chini Mill Ltd., Bazpur. The petitioner was, thereafter, placed under suspension by order dated 17.07.2008, and an Inquiry Officer was nominated. The said Inquiry Officer issued a charge-sheet on 06.12.2008 containing six charges, details of which shall be referred to later in this order. The petitioner submitted his written statement of defence on 07.01.2009 denying the charges.

The Inquiry Officer submitted his inquiry report on 08.04.2009 which the petitioner claims to have been made aware of only on 19.04.2010, when the inquiry report was served on him along with the show-cause notice. The petitioner submitted his reply thereto on 02.07.2010 denying the allegation that a letter was sent by him by fax on 27.02.2009. He submitted another reply on 05.06.2011.

When he was under suspension, and during the pendency of disciplinary inquiry with respect to the first charge-sheet, another charge-sheet was served on the petitioner on 30.10.2010 informing him that he was also being suspended with respect to the other charges levelled in the second charge-sheet. The petitioner submitted his written statement of defence, to the second charge-sheet on 08.07.2011 refuting the charges and pleading not guilty.

It is the petitioner’s case that, despite his having addressed a letter on 15.06.2011 seeking an opportunity to adduce evidence in the inquiry, the said request went unheeded, and the Inquiry Officer submitted his report dated 27.03.2011 without giving him an opportunity of being heard. This inquiry report dated 23.07.2011 was served on the petitioner, along with the show-cause notice dated 02.08.2011. The petitioner submitted a letter dated 08-10.08.2011 seeking the complete inquiry report regarding the findings on charge No.4. He also sought 15 more days’ time, to submit his reply, from the date on which he was supplied the missing pages. The said missing pages were supplied to the petitioner vide letter dated 16.08.2011.

It is the petitioner’s case that, on perusal of the missing pages, he came to know that Charge No.4 of the second charge-sheet was held not proved by the Inquiry Officer, and he was found not guilty of the same; he sought a clarification by letter dated 19.08.2011, and was informed by the third respondent, by letter dated 27.08.2011, that no further time would be given to him to submit his reply; he submitted his reply to the show-cause notice, thereafter, on 02.09.2011 contending that no inquiry was held, and the inquiry report was submitted behind his back; and the third respondent passed the order of punishment on 08.09.2011 imposing on him the punishment of dismissal from service. Aggrieved thereby, the present Writ Petition.

The charges levelled against the petitioner, in the first charge-sheet dated 06.12.2008, are as under:-

“Charge No.1: As per the order of the administrator Uttarakhand Cooperative Sugar Mills Federation, Dehradun, an investigation team conducted a sudden inspection of the Sitarganj Sugar Mill on 11.04.2018. Subsequent to this, the fact came to light that crushing season 2007-08 was suddenly put to an end on 11.04.2018 in absence of due information and permission of competent authorities/officers. The main/chief reason for the above untimely closure of crushing season was serious irregularities in the purchase of cane, which was done at you behest and you had serious and dubious involvement in the said purchase.

After receiving information regarding the imminent arrival of the Head Quarter Team, the crushing season was put to an end by you, in sudden haste, the same was done as you suspected that you shall be caught red-handed for your serious irregularities, without forwarding prior information to the head office and the Cane Commissioner which is mandatory as per Rules.

Charge No.2: The tagging order regarding payment of cane cost was seriously flouted by you, and the payments which were to be made to the cane farmers were transferred to other heads, inspite of the fact that financial assistance was provided by the Government for the last two years.

During crushing season 2006-07, payment of Rs.2148.46 lakhs was made by you against the tagging amount of Rs.2356.19 lakhs. The remaining amount of Rs.207.73 lakhs was utilized under other heads. Rs.1822.38 lakhs were fraudently obtained by misleading the Government in lieu of cane cost payment and the same was not utilized for the payment of cane cost.

Likewise the tagging amount for payment of cane cost during season 2007-08 comes to Rs.193.05 lakhs and against the same, a payment of Rs.1235.62 lakhs has been made by you as cane cost. The remaining tagging amount of Rs.667.43 lakhs was diverted to other heads.

During crushing season 2006 -07 and 2007-08, diversion of the tagging amount to other heads, had resulted in an increase in working capital, despite which no payment was made towards legal liabilities/payments of provident fund, society commission; and repayment of loans was not done as per the terms and conditions. This proved that the working capital of the mill was grossly misused by you.

Charge No.3: During the financial years 2005-06, 2006-07 and 2007-08, the money spent on repairs and maintenance of machinery was in excess of the approved budget, and hence financial irregularities were committed by such excess expenditure.

During the year 2005-06. Rs.110.38 lakhs were spent against the approved budget of Rs.94.34 lakhs, during the year 2006-07, the approved budget was Rs.164..00 lakhs and Rs.216.74 were spent. Likewise, Rs.242.49 lakhs were spent against approved budget of Rs.180.80 lakhs during the year

2007-08.

As such during the year 2005-06, Rs.16.03 lakhs, during the year 2006-07, Rs.52.74 lakhs and during the year 2007-08, Rs.61.59 lakhs were spent in excess of the approved budget, despite this, the technical results of the mill were extremely unsatisfactory and against the set standards.

It is amply clear by the above that, in the capacity of the GM of the mill, you had no control on your subordinate workers nor any disciplinary action was proposed by you against any worker despite negative results. It makes it clear that purposeful financial loss was imposed upon the mill by you.

Charge No.4: During crushing season 2007-08 without issuance of any purchase order, store material was specially obtained from Mr. Naresh and Company, Delhi. Certain material was obtained from a specific party during April, 2007 to 31st March, 2008 vide 33 M.R, and the same was done in absolute violation of the purchase process and the rules of the mill.

In addition to this, materials were obtained from other parties in violation of the purchase process, and advance payment was made without due issuance of purchase order without M.R. verification which is in clear violation of the purchase process/rules of the mill. Apart from this, the fact also came to light that there was an unprecedented rise in the fabrication and erection work, around Rs.30-37 lakhs were spent on the same, and many contractors were putting forward their demands for payment against the work undertaken and carried on by them. When the budget for the same had a provision only of Rs.21.35 lakhs, even after such excessive expenditure, the mill results remained quite unsatisfactory.

It is very much clear from the above that the faulty working was because of improper upkeep of the machines, although all arrangements were available. The unnecessary excess expenditure was incurred by you, and due to this the mill had suffered loss and technical results were not satisfactory. It is a clear depiction of your negligence towards duty.

Charge No.5: During crushing season, the sugar parta (extracted) remained at 8.75% which exhibited unprecedented loss, and during the year 2006- 07 sugar parta was @8.90%. The pole percentage during crushing season 2007-08 remained at 11.23% and 11.17% during the year 2006-07. Due to continuous and incessant decline in sugar parta, it appeared that sugarcane purchase was made, and imaginary statistics of excess sugar cane crushing were put forward, which makes it clear that serious irregularities were committed by you in sugar cane purchase and, consequently, purposeful financial loss was imposed upon the mill.

Charge No.6: In addition to the above, a perusal of the documents and the records received from Uttaranchal Sugar makes it clear that various irregularities were committed in Sitarganj Sugar Mill, and a charge-sheet No.1344 dated 29.01.2008 was issued to you for the same.

It is expected from you that you will file your reply/verification to the undersigned within a period of 30 days’ from receipt of the charge-sheet.

You are hereby cautioned that, if your reply is not received within the stipulated period, it shall be presumed that you do not have anything to say in this matter. It is also expected that, along with the written reply, the undersigned be intimated if you want a chance of personal hearing.

In addition to this, if you wish to produce any witness for evidence or want to examine/cross-examine anyone the name and address of the same may be intimated along with the name, address of the person in your clarification mentioning summarily the subject and related statement concerned witness/person.”

The charges levelled against the petitioner, in the second charge-sheet, read thus:-

“Charge No.1: During the year 2006 -07 different equipments worth Rs.46,76,382.00/-; during the year 2007-08 equipments worth Rs.38,69,185.80/- were received without obtaining indent from the concerned department and without issuance of a work order; and, in addition, the work orders of the same were issued after the said equipments were received. Such action is in clear contravention of the established purchase and financial rules.

Charge No.2: Despite plentiful/abundant availability of material in the mill, certain purchases were made during the year 2006-07 amounting to Rs.29,09,025.67/- and during the year 2007-08 amounting to Rs.34,65,471.04/- which were either not utilized or were partially utilized. Purchase of material without requirement shows purposeful financial loss to the mill.

Charge No.3: As per purchase rules and established system firstly purchases of steel are to be made from Steel Authority of India Ltd. or other public enterprises. In the event of non-availability in the aforesaid enterprises or in the emergency condition such purchase can be made from open market.

During the year 2007-08 Steel and S.S. Plates worth Rs.27,77,800.00/- were straightway purchased from M.S. Steel, Ghaziabad instead of SAIL or any other public enterprise. This is clear transgression of established and fixed rules.

Charge No.4: During the year 2007-08 payment of following two bills of J. S. Baba Engg. and Traders, Railway Station Ghaziabad was made by the mill.

Bill No.73 dated 25.01.2008, Rs.65,000/-

Bill No.74 dated 17.04.2007, Rs.28,465/-

Bill No.74 bears a pre-date of 17.04.2007 while bill No.73 bears post dated 25.01.2008, hence authenticity of the above bills is doubtful. The payment of these doubtful bills is a serious carelessness, and is a deliberate attempt to cause financial loss to the mill.

Charge No.5: As per Rules, repairs in excess of Rs.50,000/- require prior permission of the Administrator. Against this, during the financial year 16 and 7 work orders during 2006-07 and 2007-08 respectively were issued without obtaining approval of the Administrator. The above is in violation of Financial Rules.

Charge No.6: M/s Bareilly Gears Engineering Works were made payment of Rs.9,36,886/- in the financial year 2006-07 and Rs.17,24,346/- in the year 2007-08. As per scrutiny of these bills, it was found that certain bills bore address “Ataria C B Ganj Bareilly” and certain bills addressed as “775 Islamnagar Sher Mohammad Pilibhi”. As the bills seemed doubtful, the same were cross-checked personally. It came to light that the shop and workshop as shown at Bareilly address did not exist. The address of Pilibhit, when enquired from the people of that area, it was told that the above board was lying there two years before, and no longer exist there. The above firm belongs to Husnara Begum, W/o Sri Afsar Husain. They took the house on rent. They do not keep any material there, and they supply the material after purchasing from market. It is clear from the above that the firm of Bareilly Gear Engineering does not exist at Bareilly, and the firm of Pilibhit is bogus. The above action indicates your misleading the mill and causing financial loss for vested interest.

Charge No.7: As per rules, payments exceeding Rs.20,000/- should be made through cheque. Against this, during 2006-07 and 2007-08 payment of Rs.20,000/- or less than Rs.20,000/- were made frequently to Bareilly Engg. Works Bareilly, Bharat Enterprises, Meerut, Drill Experts P. Ltd., Lucknow, V.K. Engineering Enterprises, Lalkuan, Thermotech Engg. Saharanpur, Belwal Electronics and Communication, Delhi, J.S. Baba Engg. and Traders, Modinagar, Naresh & Co., Universal Electric Works Moradabad, Sri Lavkush Misra, Shyama Nandan Singh, Sri Mohan Singh etc. From the above, it is clear that, inspite of outstanding exceeding Rs.20,000/-, payments were released in part in cash frequently, instead of issuing cheques. This act clearly shows vested interest causing financial loss to the mill and is in violation of financial rules.

Charge No.8: A payment of Rs.33,180/- was made to Sharma Videos Ramnagar Road, Kashipur, against the purchase of a split AC with a stabilizer.

The bill of the said firm did not bear Registration No. of Trade Tax Department, Vat No., Serial No. of the bill. As the authenticity of the bill seemed doubtful and when contacted Sharma Videos, the owner of the firm Mr. Vinod Chand Pant told they did not supply the air conditioner to the when the bills and quotations available in the mill were shown to him, then he said that they have not issued the quotation and bill and the records shown to him are bogus. This action indicates vested interest, and amounts to financial loss to the mill.”

Elaborate oral and written submissions were put forth both by Mr. Alok Mahra, learned counsel for the petitioner and Mr. T.A. Khan, learned Senior Counsel appearing on behalf of respondent nos.2 and 3. They have also relied on certain judgments which shall be referred to later in this

order. It is convenient to examine the rival submissions, made by learned counsel and learned Senior Counsel, under different heads.

I. COULD AN ENQUIRY HAVE BEEN CONDUCTED WITHOUT HOLDING THAT THE EXPLANATION TO THE CHARGE-SHEET

WAS NOT SATISFACTORY ?

Mr. Alok Mahra, learned counsel for the petitioner, would submit that, when the petitioner was serving as the In-Charge General Manager in Kisan Sahakari Chini Mill Ltd. Sitarganj, District Udham Singh Nagar, the first charge sheet was issued to him on 6.12.2008 containing six charges; the petitioner submitted his reply thereto on 07.01.2009 denying and refuting each and every allegation leveled against him with cogent reasons; after receipt of the reply to the charge sheet, the disciplinary authority nowhere stated that the written statement, submitted by the petitioner, was not satisfactory; the enquiry officer could have proceeded with the enquiry only if the written statement of defense was found to be unsatisfactory; and, in case he was of the view that the petitioner’s written statement of defense did not deserve acceptance, the disciplinary authority should have assigned reasons therefor.

In the present case, the procedure for conducting a disciplinary enquiry is governed by statutory regulations. Section 122 of the U.P. Cooperative Societies Act, 1965 relates to the authority to control employees of co-operative societies. Under sub-section (1) thereof, the State Government may constitute any authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of co-operative societies, or a class of co-operative societies, and may require such authority or authorities to frame Regulations regarding recruitment, emoluments, terms and conditions of service, including disciplinary control of such employees. Section 122 (2) stipulates that the Regulations, framed under sub-section (1), shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any Regulations made under Section 121.

In the exercise of the powers conferred under Section 122(2) of the Uttar Pradesh Co-operative Societies Act, 1965, the State Government approved the Uttar Pradesh Co-operative Sugar Factories Federation Ltd Employees Service Regulations, 1988 (for short the ‘1988 Regulations’). Section 1(2) thereof stipulates that the regulations shall apply uniformly to every whole time employee appointed by the Federation and posted at the Head Office of the Federation, or at the Federations own units, or at any constituent factories. Chapter VII of the 1988 Regulations relates to penalties and disciplinary proceedings. Regulation 50(1) thereof stipulates that, without prejudice to the provisions contained in any Regulation, an employee, who commits a breach of duty enjoined upon him or has been convicted for a criminal offence or an offence under Section 103 of the Act or does anything which is prohibited by the 1988 Regulations, shall be liable to be punished by the Appointing Authority with any of the penalties mentioned in Clauses ‘a’ to ‘f’ thereof.

Regulation 50(3)(a) stipulates that a charge-sheeted employee shall be awarded punishment by the appointing authority according to the seriousness of the offence, provided that no penalty under sub-clauses ‘d’, ‘e’ and ‘f’ of clause (1) shall be imposed without recourse to disciplinary proceedings. Regulation 51(1) stipulates that the disciplinary proceedings against an employee shall be conducted by an enquiry officer, duly appointed by the Appointing Authority, with due observation of the principles of natural justice, for which it shall be necessary that:- (a) the employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of such charge, and he shall be required to submit explanation in respect of the charges within a reasonable time; (b) such an employee shall also be given an opportunity to produce witnesses at his own cost, or to cross-examine witnesses in his defence, and shall also be given an opportunity of being heard in person, if he so desires; (c) the appointing authority may pass suitable orders in case no explanation in respect of the charge-sheet is received or the explanation submitted is unsatisfactory.

It is evident, from Regulation 51(1)(a) of the 1988 Regulations, that the delinquent employee is required to be served with a charge-sheet containing specific charges, the evidence in support of such charges is required to be referred to therein, and the delinquent employee is to be permitted to submit his explanation in respect of the charges. The 1988 Regulations do not require reasons to be assigned by the disciplinary authority, on receipt of the delinquent employee’s explanation to the charge-sheet, before initiating a disciplinary enquiry. Even otherwise, the very fact that the disciplinary inquiry was instituted would go to show that the disciplinary authority was not satisfied with the explanation furnished by the petitioner in reply to the charge-sheet for, if he was, it would then not have even been necessary to conduct a disciplinary enquiry, and the entire proceedings would have been closed. This contention, urged on behalf of the petitioner, does not therefore merit acceptance.

II. WAS DISCIPLINARY PROCEEDINGS INSTITUTED TO DENY THE PETITIONER PROMOTION ?

Sri Alok Mahra, learned counsel for the petitioner, would submit that a departmental promotion committee was convened on 24.6.2009 and officers, junior to the petitioner, were promoted to the post of general manager; the petitioner was the senior most officer working as the in-charge general manager, yet he was deprived of promotion; and this was done to promote officers junior to the petitioner.

As stated hereinabove, the petitioner was divested of his charge as the In-charge General Manager on 11.04.2008, and was placed under suspension by order dated 17.07.2008. He was also issued a charge-sheet by the Inquiry Officer on 06.12.2008 containing six charges. The exercise of promotion, to the post of General Manager, was undertaken during the period when the petitioner was under suspension, and the disciplinary proceedings initiated against him had commenced on a charge-sheet being issued to him. A delinquent employee, facing disciplinary proceedings for grave and serious charges, cannot claim, as of right, that, notwithstanding the disciplinary proceedings initiated against him, he should have been considered for promotion to the post of General Manager, the very same post the charge of which he was divested of by proceedings dated

11.04.2008. The contention that the disciplinary proceedings were initiated against him, only to deny him promotion, is only to be noted to be rejected.

III. IS FAILURE TO HOLD AN ORAL ENQUIRY FATAL, EVEN IF THE DOCUMENTARY EVIDENCE SUFFICED TO ESTABLISH THE

CHARGES ?

Sri Alok Mahra, learned counsel for the petitioner, would submit that the enquiry report was submitted to the disciplinary authority by the enquiry officer on 08.04.2009; a show cause notice was issued to the petitioner, by the disciplinary authority, twelve months thereafter on 8.4.2010; the petitioner submitted his reply to the show cause on 02.07.2010; in paragraph 3 of the enquiry report, the enquiry officer mis-stated that the petitioner had sent a fax message on 27.02.2009; the petitioner denied this fax message; he also submitted that registered letter no. 2885 dated 16.02.2009 was never delivered to him by the postal authorities; no document has been placed on record, by the respondents, to show that the letter dated 16-02-2009 was served on the petitioner; the fax message was sent by some R. D. Agarwal from the office of the Power Secretary, Secretariat, Dehradun; the petitioner was residing in Haridwar; since the fax message was received from the office of the Power Secretary, Dehradun, it was incumbent on the enquiry officer to have confirmed from the petitioner about this fax message; however, the enquiry officer did not do so; a reply was submitted by the petitioner, to the first show cause notice, on 02-07-2010, and the impugned punishment order was passed on 08.09.2011; both the enquiry officer as well as the disciplinary authority had sufficient time to verify the veracity of the fax alleged to have been sent by the petitioner; the disciplinary authority did not touch upon this vital aspect in the punishment order dated 08.09.2011; the show cause notice, to the 2nd charge sheet, was served on the petitioner on 2.5.2011; he submitted his reply to the 2nd show cause notice on 2.9.2011; the disciplinary authority passed the order of punishment on 8.9.2011 on the basis of the enquiry report dated 8.4.2009, and the 2nd Enquiry Report dated July, 2011; the enquiry officer proceeded with the enquiry with a pre-determined mind to hold the petitioner guilty of the charges leveled against him; the enquiry officer did not hold any oral enquiry; neither was oral evidence adduced nor were the documents proved by witnesses; the enquiry officer submitted his enquiry report to the disciplinary authority without examining any witnesses to prove the charges leveled against the petitioner; the respondent has admitted, in the counter affidavit, that no oral evidence was produced from the side of the department; documentary evidence alone could not have been taken into consideration to conclude that the charges were proved; as the report of enquiry officer is not based on any oral enquiry, it is bad in law; as the enquiry report is vitiated, no action can be taken on the basis of such a report; since no oral enquiry was held, and none of the documents relied upon by the enquiry officer were proved through departmental witnesses, the impugned punishment order deserves to be set aside; the impugned punishment order dated 08-09-2011 has been passed on the basis of two enquiries held pursuant to the charge sheets dated 06-12-2008 and 30-10-2010; since both the enquiries were held in complete disregard of the principles of natural justice and fair play in action, the impugned punishment order cannot be sustained in the eye of law; and it deserves to be quashed and set-aside.

On the other hand Sri T.A. Khan, learned Senior Counsel appearing on behalf of the second respondent, would submit that, as the evidence against the petitioner is entirely documentary, and copies thereof were furnished to him along with the charge-sheet, no oral evidence was required to be adduced on behalf of the Management; it sufficed to establish the charges on the documentary evidence on record; the Inquiry Report dated 08.04.2009 records that, in reply to the charge-sheet, the petitioner had sent his reply vide letter dated 07.01.2009; letter dated 16.02.2009 was, thereafter, issued to the petitioner; in reply thereto the petitioner, by fax dated 27.02.2009, had informed that he had nothing to say in the matter besides what he had stated in his letter dated 07.01.2009; the notice dated 16.02.2009 was sent by registered post (registered letter No. 2885 dated 16.02.2009); as the petitioner does not dispute that such a letter was sent by registered post, it must be deemed to have been served; having sent a reply thereto by fax dated 27.02.2009, the petitioner is now seeking to wriggle out of the situation whereby he had waived his right to adduce oral evidence, examine witnesses or to cross-examine the management witnesses; and since the petitioner, by his fax dated 27.02.2009, had made it clear that he had nothing further to add, besides his letter dated 07.01.2009, he could not thereafter claim that he was denied a reasonable opportunity of being heard, or that principles of natural justice has been violated thereby.

It is true that, in the present case, no oral inquiry was held. Before examining whether failure to hold an oral inquiry, in the facts and circumstances of the present case, is fatal, it is necessary to refer in brief to the purpose for which a disciplinary inquiry is conducted. The object of holding a departmental enquiry is to maintain discipline in service, and further the efficiency of public service. (Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry (2005) 10 SCC 471; South Central Railway v. G. Ratnam (2007) 8 SCC 212.) A department enquiry, conducted against the delinquent, is not a casual exercise. The enquiry proceedings cannot be conducted with a closed mind, and the rules of natural justice should be observed. The rules of natural justice should be complied with to ensure that the delinquent is treated fairly in proceedings which may culminate in the imposition of a punishment, including dismissal/removal from service. (State of U.P. and Ors. v. Saroj Kumar Sinha (2010) 2 SCC 772).

It is true that the delinquent employee should be afforded a reasonable opportunity to defend himself against the charges, on the basis of which the inquiry is held. He should be given an opportunity to deny his guilt, and establish his innocence. ,(Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & others (2013) 4 SCC 465). A person, who is required to answer the charge, must know not only the accusation, but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge, and to put relevant questions by way of cross-examination. He must then be given a chance to rebut the evidence led against him. This requirement must be substantially fulfilled if the result of the enquiry can be accepted. (Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719; Hardev Singh v. State of U.P. and Ors. 2016 (2) ALJ 314). The rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, the evidence of the opposite party should be taken in his presence, and he should be given the opportunity of cross-examining the witnesses examined by that party. (State of M.P. v.Chintaman Sadashiva Waishampayan AIR 1961 SC 1623 ;Ayaaubkhan Noorkhan Pathan (2013) 4 SCC 465; Union of India v. T.R. Varma AIR 1957 SC 882; Meenglas Tea Estate AIR 1963 SC 1719;K esoram Cotton Mills Ltd. v. Gangadhar AIR 1964 SC 70;8 New India Assurance Co. Ltd. v. Nusli Neville Wadia (2008) 3 SCC 279; Rachpal Singh v. Gurmit Kaur (2009) 15 SCC 88; Biecco Lawrie Ltd. v. State of W.B.(2009) 10 SCC 32; and Saroj Kumar Sinha (2010) 2 SCC 772). When a charge sheet is given to the employee, ordinarily an oral enquiry must be held, whether the employee requests for it or not. A notice should be issued to him indicating the date, time and place of the enquiry. On that date, the oral and documentary evidence against the employee should be led in his presence. The charge sheeted employee should not only know the charges against him, but should also know the evidence against him, so that he can properly reply thereto.(P.C. Thomas v. Mutholi Cooperative Society Ltd.

1978 LIC 1428 (Ker.); Meenglas Tea Estate AIR 1963 SC 1719;H ardev Singh 2016 (2) ALJ 314; A.C.C. Ltd. v. Their Workmen (1963) II LLJ 396 (SC); Radhey Kant Khare v. U.P.Cooperative Sugar Factories Federation Ltd. (2003) 1 ESC 427).

The factors which the Court should keep in mind, in the event the findings arrived at in the departmental proceedings are questioned before it, are the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry (State of Assam and Anr. v. Mahendra Kumar Das and Ors. (1971) 1 SCR 87); (2) In a domestic enquiry, fairness in the procedure is a part of the principles of natural justice (Khem Chand v. Union of India and Ors. (1963) ILL LJ 665 SC and State of Uttar Pradesh v. Om Prakash Gupta AIR 1970 SC 679;)

(3) Exercise of discretionary power involves two elements (i) Objective and (ii) subjective, and existence of an objective element is a condition precedent for exercise of the subjective element. (K.L. Tripathi v. State of Bank of India and Ors. (1984) I LLJ 2 SC )(;4) It is not possible to lay down any rigid rules of principles of natural justice, application of which depends on the facts and circumstances of each case, but the concept of fair play in action is the basis. (Sawai Singh v. State of Rajasthan (1986) IIL LJ 390 SC) ;(5) The enquiry officer is not permitted to travel beyond the charges, and imposition of punishment on the basis of a finding which was not the subject matter of the charges is illegal. (Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344); (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of fact, recorded by a tribunal or authority, if they are perverse or are based on no evidence (Central Bank of India Ltd. v. Prakash Chand Jain (1969) IIL LJ 377 SCK; uldeep Singh

v. Commissioner of Police and Ors. (1999)I LLJ 604 SC; Narinder Mohan Arya v. United India Insurance Co. Ltd. and Ors (2006) 4 SCC 713).

Let us now examine the judgments on which reliance is placed on behalf of the petitioner. Sri Alok Mahra, learned counsel for the petitioner, would rely on Saroj Kumar Sinha (2010) 2 SCC 772;R oop Singh Negi v. Punjab National Bank (2009) 2 SCC 570 ;State of Uttaranchal v. Kharak Singh (2008) 8 SCC 236 and Radhey Kant Khare (2003) 1 ESC 427.

In Saroj Kumar Sinha (2010) 2 SCC 772, the respondent before the Supreme Court made a written request to the appellant demanding copies of the documents relied upon in the charge-sheet. Neither the disciplinary authority nor the inquiry officer made the documents available to him, rather a reminder was issued by the inquiry officer calling upon the respondent to submit his reply to the charge-sheet. Apprehending that the inquiry officer may be biased, the respondent submitted a representation to the Government for a change of the inquiry officer. This request of the respondent was accepted by the Government. It later transpired that the Inquiry Officer had already completed the inquiry, before the new Inquiry Officer was appointed. The respondent only came to know about the existence of the inquiry report a year and half later.

Being unaware of the inquiry report, the respondent made a representation to the new Inquiry Officer to supply the relevant documents, numbering 19, to enable him to prepare an appropriate reply to the charge-sheet, and to prepare his defence. Since no response was received from the inquiry officer, the respondent sent a couple of reminders. The respondent later learnt that the second inquiry officer had informed the Government that the inquiry report, submitted by the first Inquiry Officer, seemed to be correct, because the delinquent officer should be deemed to have accepted the charges levelled against him in as much as he had not submitted his reply/explanation to the charge-sheet. Based on the subsequent inquiry report, which merely reiterated the findings in the earlier inquiry report, the respondent was served with a show-cause notice. On its being challenged, the High Court held that it was open to him to put his case before the authority concerned while submitting his reply to the show-cause notice.

The respondent furnished a certified copy of the aforesaid order to the appellant, and informed them that he would soon submit a detailed representation/reply in response to the show-cause notice. He submitted a representation pointing out that the aforesaid two inquiries had been held in patent violation of the principles of natural justice, fairness and justice, as well as the basic requirements of law relating to departmental enquiries. He reiterated his utter helplessness in making an effective reply to the show-cause notice as he had not been supplied with the relevant documents inspite of numerous representations and reminders. He again made a plea for supply of the documents. Ultimately, the respondent was served with a copy of a letter of the Executive Engineer directing supply of the copies of the relevant documents. Even though the documents were not supplied to the respondent, the appellant passed the order removing the respondent from service on the ground that he did not submit his reply.

On its jurisdiction being invoked, the Division Bench of the Allahabad High Court held that the inquiry officer did not afford an opportunity to the respondent, in so far as he had failed to supply the documents which he had relied upon while framing the charges; the respondent was also not afforded an opportunity to lead evidence, and was also denied the opportunity of cross-examination of witnesses; the inquiry officer had also failed to prove the charges during the inquiry proceedings by recording any evidence; and the inquiry was vitiated as it was in violation of principles of natural justice.

On its jurisdiction being invoked the Supreme Court referred to Rule 7(x) of the Rules which reads thus :

“Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.”

The Supreme Court then held that, when the respondent had failed to submit an 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 enquiry officer can proceed with the inquiry ex parte; even in such circumstances, it is incumbent on the enquiry officer to record the statement of the 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 necessary evidence before the enquiry officer; this is to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge; an inquiry officer, acting as 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 ascertain whether the unrebutted evidence is sufficient to hold that the charges are proved; in the present case, the aforesaid procedure had not been observed; since no oral evidence had been examined, and the documents had not been proved, it could not therefore have been taken into consideration to conclude that the charges had been proved against the respondent; not only was the respondent denied access to documents, sought to be relied against him, he had also been condemned unheard as the inquiry officer failed to fix any date for the conduct of the enquiry; not a single witness had been examined in support of the charges levelled against the respondent; the High Court had rightly observed that the entire proceedings were vitiated, having been conducted in complete violation of principles of natural justice, and total disregard of fair play; and the respondent never had any opportunity, at any stage of the proceedings, to offer an explanation against the allegations made in the charge-sheet.

As held by the Constitution Bench of the Supreme Court, in Union of India Vs. H.C. Goel AIR 1964 SC 36,4 an Inquiry Officer is merely a delegate of the disciplinary authority, and his role is only to record his findings, and submit his report to the disciplinary authority. Even after receipt of the Inquiry Report, the decision whether or not to accept the findings of the Inquiry Officer, and whether or not to impose punishment, lies with the disciplinary authority, and not the Inquiry Officer. The attention of the two Judge Bench of the Supreme Court, in Saroj Kumar Sinha (2010) 2 SCC 772, was not drawn to the Constitution Bench judgment of the Supreme Court, in H.C. Goel AIR 1964 SC 364, wherein it was held that the Inquiry Officer is a delegate of the disciplinary authority. The conclusion of the two Judge Bench, in Saroj Kumar Sinha (2010) 2 SCC 772, that the Inquiry Officer is not supposed to be a representative of the disciplinary authority does appear to fall foul of the law laid down by the Constitution Bench of the Supreme Court in H.C. Goel AIR 1964 SC 364.

Rule 7(x) of the Rules, which fell for consideration before the Supreme Court, in Saroj Kumar Sinha (2010) 2 SCC 772, obligated the employer, even in case the delinquent employee did not appear on the date fixed for inquiry or at any stage of the proceedings inspite of the service of notice on him, to proceed with the inquiry ex-parte, and even in such an ex-parte inquiry, the Inquiry Officer was obligated to record the statement of the witnesses, mentioned in the charge-sheet, even in the absence of the delinquent employee. It is in the context of this Rule and, since the delinquent employee was not even furnished the necessary documents for him to submit a reply to the charge-sheet and yet he was held guilty of the charges, that the aforesaid observations were made by the Supreme Court. Unlike rule 7(x) of the Rules, which fell for consideration in Saroj Kumar Sinha

(2010) 2 SCC 772, Rule 51(1)(a) of the 1988 Rules only requires a charge-sheet to be issued along with the evidence in support of the charge, an opportunity to be given to the delinquent to submit his reply thereto; to be given an opportunity to produce witnesses at his cost or to cross examine witnesses in his defence; and, if he desires, to be heard in person. It does not, unlike Rule 7(x), require the Inquiry Officer to hold an oral enquiry even if the delinquent employee has chosen to waive the opportunity afforded to him for an oral enquiry to be held.

In Radhey Kant Khare (2003) 1 ESC 427, the Division Bench of the Allahabad High Court, relying onS ubhash Chandra Sharma v. U.P. Co-operative Spinning Mills 2000 (1) UPLBEC 54,1 held that, after a charge-sheet is given to the employee, an oral enquiry is a must, whether the employee requests for it or not; a notice should be issued to him indicating the date, time and place of the enquiry; on that date oral and documentary evidence against the employee should first be led in his presence (A.C.C. Ltd. (1963) II LLJ 396 (SC)); ordinarily, if the employee is examined first, it is illegal (Anand Joshi v.M.S.F.C.1991 LIC 1666 (Bom);S .D. Sharma v. Trade Fair Authority of India (1985) II LLJ 19 3and Central Railway v. Raghubir Saran (1983) II LLJ 26;) no doubt, in certain exceptional cases, the employee may be asked to lead evidence first, (Firestone Tyre and Rubber Co. Ltd. v. Their Workmen AIR 1968 SC 236,) but ordinarily the rule is that the employer must adduce his evidence first; the reason for this principle is that the charge-sheeted employee should not only know the charges against him, but should also know the evidence against him, so that he can properly reply to the same; where no witnesses were examined and no exhibit or record is made, and straightaway the employee was asked to produce his evidence and documents in support of his case, it is illegal (P. C. Thomas 1978 LIC 1428 (Ker.), and Meenglas Tea Estate AIR 1963 SC 1719); ordinarily the statement of all witnesses of the employer should be recorded in the presence of the employee unless there are compelling reasons to act otherwise (Kesoram Cotton Mills AIR 1964 SC 708 and Prakash Chand (1969) IIL LJ 377 SC; a)nd if the witnesses are examined in the absence of the employee, and their recorded statements are also not supplied to him, the procedure is illegal (Tata Oil Mills Co. Ltd. v. Their Workmen (1963) II LLJ 78; India General Navigation and Rly. Co. Ltd. v. Its Employees (1961) II LLJ 372 (SC)B; harat Sugar Mills Co. Ltd. v. Jai Singh (1961) II LLJ 644 (SC;) Sur Enamel and Stamping Works Ltd. v. Their Workmen AIR 1963 SC 1914 and Vysya Bank v. N. M. Pat 1994 LIC

1429).

As has been held in Radhey Kant Khare (2003) 1 ESC 427, ordinarily, an oral inquiry is essential whether or not the employee requests for it; a notice should be issued to him indicating the date, time and place of inquiry; and oral and documentary evidences should be adduced on that date. In exceptional circumstances, more so where documentary evidence forms the basis to establish the charges, failure to hold an oral inquiry may not be

fatal. No employee can be forced to attend the inquiry. In the present case, despite putting him on notice and giving him the opportunity of an oral enquiry, the petitioner chose to waive the opportunity of participating in an oral inquiry. As the documentary evidence, enclosed along with the charge-sheet, sufficed to establish the charges, it is difficult to hold that, in the facts and circumstances of the present case, failure to hold an oral inquiry is fatal.

In Roop Singh Negi (2009) 2 SCC 570, the appellant was a peon working in the respondent-bank. On a complaint lodged by the Manager of the Bank alleging that some drafts, which were presented for encashment and were purported to have been issued by the Bank, had, in fact, not been issued, a First Information Report was registered. The Investigating Officer opined that the integrity of the appellant was doubtful. Five years after the incident, disciplinary proceeding were initiated against the appellant alleging that he had taken away one blank draft issue book. A show-cause notice was issued to him to which he showed cause. He was found guilty by the Enquiry Officer who placed reliance on the purported confession made by the appellant before the police authorities, which the appellant had contended was obtained by coercion.

It is in this context that the Supreme Court held that a departmental proceeding is a quasi-judicial proceeding; the Enquiry Officer performs a quasi-judicial function; the charges leveled against the delinquent employee must be found to have been proved; the enquiry officer has a duty to arrive at a finding taking into consideration the material 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 had merely tendered the documents, and did not prove the contents thereof; and reliance was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

Unlike in Roop Singh Negi (2009) 2 SCC 570, where the charges were held to have been established on the basis of the alleged confession of the delinquent employee and on the basis of the First Information Report, in the present case, a charge-sheet was issued to the petitioner enclosing therewith the documentary evidence on which the charges were sought to be proved; and the delinquent employee was given an opportunity to file his reply thereto. The petitioner filed an elaborate reply denying the charges leveled against him. Though he was specifically asked whether he intended to produce any evidence so that an oral inquiry could be held, the petitioner, by his fax dated 27.02.2009, stated that he had nothing to add. It may, therefore, not be possible for us to hold that, even though the petitioner specifically refused the opportunity to participate, an oral enquiry should nonetheless be held, and evidence marked through witnesses therein. In this context it is necessary to note that the petitioner was the in-charge General Manager of the Sugar Mills, and all other employees in the Sugar Mills were his subordinates. The charge leveled against him is of breach of the duty enjoined upon him i.e. failure to follow the extant rules of procurement and the prescribed procedure; failing to control his subordinates; and of grave financial irregularities. These charges, as shall be elaborated later in this order, were established on the basis of the documentary evidence on record. Reliance placed by the petitioner, on Roop Singh Negi (2009) 2 SCC 570, is therefore misplaced.

In Kharak Singh (2008) 8 SCC 236, the respondent was a temporary forest guard, who was alleged to have been involved in the illicit felling of trees in the Haldwani Forest Division. A charge-sheet was served on him to which he furnished a reply. On the basis of the Inquiry Report, the respondent was dismissed from service. It was contended, on behalf of the appellant, before the Supreme Court that the enquiry was conducted according to rules, and the punishment was awarded based on the gravity of charges. It is in this context that the Supreme Court observed that (i) enquiries must be conducted bona fide and care must be taken to see that the enquiry does not become an empty formality; (ii) if an officer is a witness to any of the incidents, which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then, in all fairness, he should not be the Enquiry Officer; if the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer; (iii) in an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent and give an opportunity to him to cross-examine the witnesses of the employer; only thereafter, the workman/delinquent should be asked whether he wants to lead any evidence and should be asked to give any explanation about the evidence led against him; and (iv) on receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report, and all connected material relied upon by the enquiry officer, to enable him to offer his views.

Except for an oral inquiry being held, which, as noted hereinabove, was only because the delinquent employee himself stated, by way of his fax dated 27.02.2009, that he did not wish to avail, all the other essential requirements of an inquiry, as pointed out by the Supreme Court in Kharak Singh

(2008) 8 SCC 236, have been followed in the present case. Reliance placed on Kharak Singh (2008) 8 SCC 236 is also of no avail.

In this context, it must be borne in mind that a decision of a Court is only an authority for what it actually decides. What is of the essence in a decision is its ratio, and not every observation found therein nor what logically follows from the various observations made in it. (State of Orissa v. Sudhansu Sekhar Mishra and others AIR 1968 SC 647; and Quinn v. Leathem 1901 AC 495). Observations of judges are not to be read as Euclid's theorems, nor as provisions of Statutes. The observations must be read in the context in which they appear. (M/s Amar Nath Om Prakash v. State of Punjab (1985) 1 SCC 345; Sreenivasa General Traders v. State of A.P. (1983) 4 SCC 353). Judges interpret statutes, they do not interpret judgments.

They interpret words of statutes, their words are not to be interpreted as statutes. There is always peril in treating the words of a speech or a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. (Herrington v. British Railways Board (1972)2 WLR 537; M/s Amar Nath Om Prakash (1985) 1 SCC 345).

The aforesaid judgments, relied on behalf of the petitioner, cannot therefore be read out of context to contend that, irrespective of the statutory Rules/Regulations and without reference to the facts and circumstances of the case, an oral enquiry should be invariably held in all cases, for it is well settled that, it is not necessary that, in every case, an oral inquiry should be held. For instance, where the accusation is based on a matter of record, it may be permissible to draw the attention of the delinquent to the evidence on record which goes against him and which, if he cannot satisfactorily explain, must lead to a conclusion of guilt. It is only when the person enquired against seems to have been held at a disadvantage, or has objected to such a course, that the enquiry may be said to be vitiated. (Firestone Tyre and Rubber Co. Ltd. AIR 1968 SC 236).

Likewise, in Dr. Noorul Ahad v. The State of Bihar & Ors. 2008 SCC OnLine Pat 852, it was held that the nature of evidence, in a domestic enquiry, was dependent upon the nature of allegations, and the nature of the reply to the show-cause notice submitted by the concerned employee; it was not necessary that, in every case, there should be oral evidence; a perusal of the enquiry report, and the impugned order of the disciplinary authority, showed that the findings in the enquiry and impugned order could not be held to be perverse in as much as many important facts were based upon admission or upon documents including an audit report; the inference drawn by the enquiry officer and the disciplinary authority were based upon the material on record; it could not be said that a person of ordinary wisdom can never come to such an opinion on the basis of the material on record; and principles of natural justice had been complied with.

In this context it is necessary to refer to the events which led to an oral enquiry not being held in the present case. The fax message sent by the delinquent employee on 27.02.2009, in reply to the letter sent by the Inquiry Officer on 16.02.2009, assumes significance. By his letter sent by the Registered Post on 16.02.2009, the enquiry officer drew the attention of the petitioner to the charge-sheet dated 06.12.2008 issued to him; and the clarification letter dated 07.01.2009 submitted by the petitioner, in reply to the charge-sheet, which was received in the office of the Inquiry Officer on

12.01.2009. The Inquiry Officer, thereafter, informed the petitioner that it was explained in the charge-sheet issued to him that, if he wanted to produce witnesses or evidence or he wanted to examine/cross-examine them, he should then mention briefly on what subject and how the person would make a relevant statement by clearly mentioning the name and address of that person. The petitioner was further informed that, in relation to the charge-sheet issued and the clarification received from him, and in view of natural justice, if the petitioner wanted to produce any other evidence or cross-examine any witness before the Inquiry Officer, in addition to the evidence attached to the confirmation of allegations, and the clarification submitted by him, then he should be present on 25.02.2009 in the office of the Inquiry Officer at 11.00 AM to produce the evidence/witness; and, simultaneously, the list of evidences/witnesses may be made available before the due date so that the concerned witnesses can be informed before the due date. In reply thereto, the petitioner sent a fax on 27.02.2009 informing the Inquiry Officer that he had already submitted his clarification by registered letter dated 07.01.2009; and, apart from this, he had nothing to say. The petitioner requested the Inquiry Officer to send the inquiry report to the Administrator, Uttarakhand Sugars.

The petitioner conveniently, instead of sending the fax message in his name i.e. Rajeev Agarwal, had sent it in the name of R.B. Agarwal, and now claims that it is not he who sent the fax. As it has not been disputed on behalf of the petitioner that letter dated 16.02.2009 was sent to him by registered post, it is difficult to accept the submission of the petitioner that he did not receive the said registered letter. It also defies reason that, soon after such a letter is sent by the Inquiry Officer on 16.02.2009 calling upon the petitioner to produce evidence or witnesses before him, a fax should be sent less than two weeks thereafter on 27.02.2009 not by the petitioner but by somebody else. This picture of a grand and evil design, sought to be presented by the petitioner, does not merit acceptance, more so since the petitioner has not even alleged that there was any particular individual who was inimical to him, and had deliberately resorted to such practices.

In SBI v. R. Periyasamy (2015) 3 SCC 101 the Supreme Court held that the onus of proof rested upon the party alleging the invalidity of an order; in other words, there was a presumption that the decision was properly and validly made, a presumption expressed in the maxim omniapraesumuntur rite esseacta which means “all things are presumed to be done in due form; an administrative authority cannot be put to proof of the facts or conditions on which the validity of its order must depend, unless the employee can produce evidence which will shift the burden of proof on the shoulders of the authority, and how much evidence was required for this purpose would always depend on the nature of that particular case. Since the letter dated 16.02.2009 was sent to the petitioner by registered post it must be presumed that such a letter was received by the petitioner. It is then for the petitioner to explain why, if he did not send the fax dated 27.02.2009, he chose not to respond to the letter dated 16.02.2009. The petitioner’s contention regarding non-receipt of the letter dated 16.02.2009, and that he did not send the fax message dated 27.02.2009, therefore necessitates rejection, and he must be held to have waived the requirement of an oral enquiry.

On the question of waiver, a distinction should be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. The former can be waived, but the latter cannot. (State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 36;4 Rajendra Singh v. State of M.P. (1996) 5 SCC 460; Union of India v. Raghuwar Pal Singh (2018) 15 SCC 463; M.C. Mehta v. Union of India (1999)

6 SCC 237). There may be certain procedural provisions which are of a fundamental character, whose violation is, by itself, proof of prejudice. The Court may not insist on proof of prejudice in such cases. The test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. (S.K. Sharma (1996) 3 SCC 364; and G. Ratnam (2007) 8 SCC 212). In the case of a procedural provision, which is not of a mandatory character, the complaint of violation should be examined from the stand-point of substantial compliance. An order passed in violation of such a provision may be set aside only where such violation has occasioned prejudice to the delinquent employee. (S.K. Sharma (1996) 3 SCC 364). The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. A substantive provision should, normally, be complied with, and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. (S.K. Sharma (1996) 3 SCC 364; and G. Ratnam (2007) 8 SCC 212). In the case of violation of a procedural provision, which is of a mandatory character, it should be ascertained whether the provision is conceived in the interest of the person proceeded against or is in the public interest. If it is found to be the former, then it must be ascertained whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision cannot be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the test of prejudice or the test of fair hearing. (S.K. Sharma (1996) 3 SCC

364).

Rule 51(1) of the 1988 Regulations, a provision intended for the benefit of the delinquent employee, does not obligate an oral inquiry to be held unless the delinquent employee seeks such an inquiry. As the charges in the present case were based entirely on documentary evidence, and in the light of the fact that the petitioner had waived the opportunity given to him to produce witnesses and adduce evidence in his defence in the oral inquiry, it is difficult to hold that an oral inquiry should nonetheless have been held or that the petitioner suffered prejudice because an oral enquiry was not held.

Since the statutory regulations i.e. the 1988 Regulations have not been violated, let us now examine whether failure to hold an oral enquiry is in violation of principles of natural justice. The rules of natural justice are not embodied rules. It is neither possible nor practicable to precisely define its parameters. (Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School (1993) 4 SCC 1.0 N) atural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to administrative realities and other factors of a given case, can be exasperating. The Court should neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt — that is the conscience of the matter. (Board of Mining Examination and Chief Inspector of Mines v. Ramjee (1977) 2 SCC 256.) The Court cannot look at the law in the abstract, or natural justice as a mere artifact. Nor can the Court fit into a rigid mould the concept of reasonable opportunity. (Ramjee (1977) 2 SCC 256).

Realism must inform “reasonable opportunity”. If the decision-making body, after fair and independent consideration, reaches a conclusion, there is no error in law.(Ramjee (1977) 2 SCC 256). Principles of natural justice cannot be stretched too far. (Bar Council of India v. High Court of Kerala (2004) 6 SCC 311). They are not codified canons, but are principles ingrained in the conscience of man. Natural justice is the administration of justice with a common-sense It is the substance of justice which should determine its form. (Canara Bank v.V.K. Awasthy (2005) 6 SCC 321). What particular rule of natural justice should be applied, and what its content should be in a given case, must depend to a great extent on the facts and circumstances of the case, and the framework of the statute under which the enquiry is held. (V.K. Awasthy (2005) 6 SCC 321).

Principles of natural justice can neither be reduced to any hard-and-fast formulae nor can they be put in a straitjacket. Their applicability depends upon the context, and the facts and circumstances of each case. The objective is to ensure a fair hearing and a fair deal to the person whose rights would be affected. (Mysore Urban Development Authority v. Veer Kumar Jain (2010) 5 SCC 791; S.K. Sharma (1996) 3 SCC 364; ECIL v. B.

Karunakar (1993) 4 SCC 727; C.B. Gautam v. Union of India (1993) 1 SCC 78; Russell v. Duke of Norfolk (1949) 1 All ER 109 (CA);M ohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405.) The applicability of the principles of natural justice is not a rule of thumb or an abstract proposition of law. It depends on the facts of the case, nature of the inquiry, the effect of the order/decision on the rights of the person, and other attendant circumstances. (Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi (1991) 2 SCC 716.T)he application of the principles of natural justice, resting as it does upon statutory implications, must always be in conformity with the scheme of the Act and with the subject-matter of the case.

In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a technical infringement of natural justice. (Administrative Law: Wade & Forsyth; Rattan Lal Sharma (1993) 4 SCC 10.)The application of the doctrine depends upon the nature of the jurisdiction conferred on the authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. (Union of India v. P.K. Roy AIR

1968 SC 850; Rattan Lal Sharma (1993) 4 SCC 10). There are no principles of universal application to every kind of inquiry, and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. (Russell v. Duke of Norfolk (1949) 1 All ER 109 (CA); and Rattan Lal Sharma (1993) 4 SCC 10). What particular rule of natural justice should apply must depend to a great extent on the framework of the law under which the enquiry is held, and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the court should decide whether the observance of that rule was necessary for a just decision on the facts of that case. (A.K. Kraipak v Union of India (1969) 2 SCC 262; and Rattan Lal Sharma (1993) 4 SCC 10). The ultimate and overriding objective, underlying the rule of audi alteram partem to ensure a fair hearing and prevent failure of justice, should serve as a guide in applying this rule to varying situations. (Mysore Urban Development Authority (2010) 5 SCC 791).

The objectives of the rules of natural justice is to ensure a fair hearing, a fair deal to the person whose rights may be affected. It is from the standpoint of fair hearing -- applying the test of prejudice -- that any and every complaint of violation of the rules of natural justice should be examined. (S.K. Sharma (1996) 3 SCC 364;A .K. Roy v. Union of India (1982) 1 SCC 271 ;Swadeshi Cotton Mills v. Union of India (1981) 1 SCC 664; A.K. Kraipak (1969) 2 SCC 262; Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935). In order to sustain the allegation of violation of principles of natural justice, it must be established that prejudice has been caused by the non-observance thereof. (Syndicate Bank v. Venkatesh Gururao Kurati AIR 2006 SC 3542; Ayaaubkhan Noorkhan Pathan (2013) 4 SCC 465; K.L. Tripathi (1984) I LLJ 2 SC; Rajendra Singh (1996) 5 SCC 460; Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529; and S.K. Sharma (1996) 3 SCC 364).

Where the obligation is to observe principles of natural justice - - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court should make a distinction between a total violation of natural justice (rule of audi alteram partem), and violation of a facet of the said rule. A distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/“no hearing”, and “no fair hearing”. In the case of the former, the order passed would undoubtedly be invalid (‘void’ or a ‘nullity’). But, in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) should be examined from the standpoint of prejudice. In other words, what should be seen is whether, in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing, and the orders to be made shall depend upon the answer to the said query. (S.K. Sharma (1996) 3 SCC 364; and G. Ratnam (2007) 8

SCC 212).

Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provisions should be examined from the point of view of prejudice. If no prejudice is established to have resulted therefrom, no interference is called for. (S.K. Sharma (1996) 3 SCC 364; and G.

Ratnam (2007) 8 SCC 212). All that the Courts must examine is whether non-observance of any of these principles, in a given case, is likely to have resulted in deflecting the course of justice. (Om Prakash Gupta AIR 1970 SC 679). No interference is called for where procedural violations, if any, have not caused any prejudice to the delinquent. (UCO Bank and another v. M. Venuranganath 2002 (5) ALT 162 (D.B.) and C. Pattabhirama Sastry

v. Bank of Baroda 1998 (4) ALT 803). Violation of principles of natural justice may not, by itself, necessitate interference by this Court, under Article 226 of the Constitution of India, in all cases. Interference would be justified only where manifest injustice would otherwise ensue or where larger public interest would so require.

As noted hereinabove, the petitioner was issued a charge-sheet along with the documents on which the charges were sought to be established. He filed his reply thereto and also referred to certain documents thereon. Thereafter the Inquiry Officer submitted a detailed report wherein the petitioner’s contentions were elaborately dealt with. A copy of the Inquiry Report was furnished to the petitioner, and he was given an opportunity to submit his objections thereto. While accepting the findings recorded by the Inquiry officer, the disciplinary authority has also assigned reasons why the charges, levelled against the petitioner, were held to have been established. The present case does not fall under the “no notice”, “no opportunity” and “no hearing” categories. Even if it were to be presumed that the requirement of holding an oral enquiry is a facet of the rule of audi-alteram, the violation must be examined from the stand point of prejudice. We are satisfied that the petitioner did not suffer prejudice on account of an oral inquiry not being held, since the charges held established against the petitioner were based on documentary evidence, and the petitioner had waived his right for an oral inquiry, despite being specifically asked whether he wished to adduce any evidence — oral and documentary in his defence.

IV. CHARGES 1 AND 2 :

Mr. Alok Mahra, learned counsel for the petitioner, would put forth his contentions charge-wise. As regards charges 1 and 2 of the 1st charge-sheet, learned counsel would submit that the evidence on record did not suffice for the charges to be held established. It is wholly unnecessary for us to examine the contentions urged by Mr. Alok Mahra, learned counsel for the petitioner, with respect to charges 1 and 2 of the first charge-sheet, in the light of the submission of Mr. T.A. Khan, learned Senior Counsel appearing on behalf of respondents 2 and 3, that charges 3 and 4 and point Nos.5 and 6 of charge No.6 of the 1st charge-sheet were extremely serious. We shall, therefore, confine our examination to these charges alone, to consider whether the findings recorded by the enquiry officer, with respect to these charges, warrants interference in certiorari proceedings.

V. CHARGE NO. 3 :

Before examining whether charges 3 and 4, and point nos. 5 and 6 of Charge No. 6 of the first charge-sheet, are established from the documentary evidence on record, it is necessary to note, albeit in brief, the scope of interference by the High Court in certiorari proceedings, more so with respect to the findings recorded by the Inquiry Officer in a disciplinary enquiry, and the punishment imposed by the disciplinary authority pursuant thereto. The scope for interference, in certiorari proceedings, is extremely limited. In the exercise of its certiorari jurisdiction, under Article 226 of the Constitution, the High Court acts only in a supervisory capacity. It simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous. In other words, the offending order or the impugned illegal proceeding is quashed, and put out of the way as one which should not be used to the detriment of the petitioner. (Managing Director, Uttar Pradesh Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee

(1980) 3 SCC 459).

The findings of fact reached by an inferior tribunal, as a result of appreciation of evidence, are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that, in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.

Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. The adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the Tribunal. (Syed Yakoob v. K.S. Radhakrishnan AIR 1964 SC 477; State of A.P. v. Chitra Venkata Rao AIR 1975 SC 2151; Union of India v. P.

Gunasekaran (2015) 2 SCC 610). If it is not possible for the High Court to say that no reasonable person could have arrived at these conclusions, the High Court, in exercising jurisdiction to issue a writ of certiorari, cannot review or reassess the evidence, and then reject the evidence as no evidence.

In disciplinary proceedings, the High Court is not, and cannot act as, a second court of appeal. The High Court, in the exercise of its powers under Articles 226 of the Constitution of India, would not re-appreciate the evidence on record. It would only examine whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such a conclusion; (g) the disciplinary authority had erroneously failed to admit admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; and (i) the finding of fact is based on no evidence. (P. Gunasekaran (2015) 2 SCC 610).

The High Court shall not (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which the findings can be based; (vi) correct the error of fact however grave it may appear to be; and (vii) go into the proportionality of punishment, unless it shocks its conscience. (P. Gunasekaran (2015) 2 SCC 610).

Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted, and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence, and to arrive at an independent finding thereupon. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and, if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court. (State of A.P. v. S. Sree Rama Rao AIR 1963 SC 1723; P. Gunasekaran (2015) 2 SCC 610; and Chitra Venkata Rao AIR 1975 SC 2151).

The High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. (Railway Board v. Niranjan Singh AIR 1969 SC 966 ;P. Gunasekaran (2015) 2 SCC 610).The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding, and worldly wisdom, will accept. Viewed in this way, sufficiency of evidence, in proof of the finding by a domestic tribunal, is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. (State of Haryana v. Rattan Singh (1977) 2 SCC 491.) Courts will interfere only where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such a conclusion or finding on the material on record. (State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584; B.C. Chaturvedi v.Union of India (1995) 6 SCC 749; Union of India v. G. Ganayutham (1997) 7 SCC 463; Bank of India v.Degala Suryanarayana (1999) 5 SCC 76; and High Court of Judicature at Bombay v.Shashi Kant S. Patil (2000) 1 SCC 416).

In examining the question whether the findings recorded by the disciplinary authority suffer from perversity, or are based on no evidence, it must be borne in mind that the standard of proof in a departmental inquiry is preponderance of probabilities (Commr. of Police, New Delhi v. Narender Singh (2006) 4 SCC 265; S. Sreesanth v. BCCI (2019) 4 SCC 66;0 Mazdoor Sangh v. Usha Breco Ltd (2008) 5 SCC 554; Cholan Roadways Ltd. v.

G. Thirugnanasambandam (2005) 3 SCC 241; Nemi Chand Nalwaya (2011) 4 SCC 584;U nion of India v. Sardar Bahadur (1972) 4 SCC 618; State Bank of India and Ors. v. Ramesh Dinkar Punde (2006) 7 SCC 21;2 and State Bank of India v. Narendra Kumar Pandey (2013) 2 SCC 740;

Commissioner of Police New Delhi and Anr. v. Mehar Singh (2013) 7 SCC 685 ;and Kamaladevi Agarwal v. State of W.B. ( 2002 ) 1 SCC 555), and not proof beyond reasonable doubt. The enquiry officer performs a quasi-judicial function and should, on an analysis of the documents, arrive at the conclusion that there is a preponderance of probability to prove the charges on the basis of the material on record. While doing so, he cannot take into consideration irrelevant facts. He cannot refuse to consider relevant facts. He cannot record findings on the basis of surmises and conjectures. (M.V.

Bijlani v. Union of India (2006) 5 SCC 88 ;Narinder Mohan Arya (2006) 4 SCC 71). In a departmental enquiry guilt need not be established beyond reasonable doubt. Proof of misconduct would suffice. (J.D. Jain v. State Bank of India (1982) 1 SCC 143).

Standard of proof cannot be put in a strait-jacket. No mathematical formula can be prescribed on the degree of proof. The probative value should be gauged from the facts and circumstances of a given case. The standard of proof is the same both in civil cases and domestic enquiries (K.S.

Gandhi (1991) 2 SCC 716) i.e. “Preponderance of probability” which means “an outweighing in the process of balancing, however slight may be the tilt of the balance or the preponderance”. (Rishi Kesh Singh v. The State AIR 1970 All 51 at 90 (FB)) .By “preponderance of proof” is meant such proof as satisfies the Court that a certain fact is true, rather than the reverse. “Preponderance of proof” is a term which means that the evidence produced must carry conviction to the human mind; a process which, in its own peculiar manner, dispels doubt. The standard of proof is the preponderance of probabilities tending to draw an inference that the fact must be more probable. (K.S. Gandhi (1991) 2 SCC 716).

To succeed on any issue, the party bearing the legal burden of proof must (1) satisfy the test of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent, and (2) adduce evidence sufficient to satisfy them of the required standard or degree of proof. Even within this formula of a balance of probabilities, variations in the subject matter or in allegations will affect the standard required. The more serious the allegation, the higher will be the required degree of proof, although it will not reach the criminal standard. (Halsbury’s Laws of England, 4th edn. at page 16; and K.S. Gandhi (1991) 2 SCC 716). As long as the findings recorded by the Inquiry Officer are held established on the test of preponderance of probabilities, no interference is called for, as, unlike criminal proceedings where the degree of proof required to establish the charge is proof beyond reasonable doubt, in disciplinary proceedings preponderance of probabilities would suffice.

Again unlike criminal proceedings, the strict rules of the Indian Evidence Act are not applicable to departmental proceedings. The purpose of a disciplinary enquiry is to deal with the delinquent departmentally, and to impose a penalty in accordance with the service rules. Strict rules of evidence and procedure would not apply to departmental proceedings. (Ajit Kumar Nag v. Indian Oil Corpn. Ltd. (2005) 7 SCC 764 ;J.D. Jain (1982) 1 SCC 143). All material which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. (State of Haryana v. Rattan Singh (1977) 2 SCC 491; J.D. Jain (1982) 1 SCC 143). It is open to the Inquiry Officer to receive and place on record all the necessary, relevant, cogent and acceptable material facts, though not proved strictly in conformity with the Evidence Act.

The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only circumstantial evidence would furnish the proof. (K.S. Gandhi (1991) 2 SCC 716). A decision must be arrived at on some evidence, which is legally admissible. If the report of the Enquiry Officer is based merely on his ipse dixit or on surmises and conjectures, his findings cannot be sustained. If the inferences drawn by the Enquiry Officer are not supported by any evidence, interference would be justified, for suspicion is not a substitute for proof. (M.V. Bijlani (2006) 5 SCC 88; Narinder Mohan Arya (2006) 4 SCC 713).

If the order of punishment is not supported by any evidence, the High Court may be justified in quashing the order. But the conclusion that the said order is not supported by any evidence must be reached after considering the question as to whether the probabilities and circumstantial evidence do not justify the said conclusion. (K.S. Gandhi (1991) 2 SCC 716; Board of High School and Intermediate Education, U.P. v. Bagleshar Persad (1967) 3 SCR 767). Departmental authorities must be careful in evaluating such material. The essence of a judicial approach is objectivity, exclusion of extraneous material or considerations and observance of the rules of natural justice. Of course, fair play is the basis, and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held to be

valid. (State of Haryana v. Rattan Singh (1977) 2 SCC 491; and P. Gunasekaran (2015) 2 SCC 610).

As the adequacy or sufficiency of evidence, in recording a finding of guilt against the delinquent employee, cannot be examined by the High Court in the exercise of its certiorari jurisdiction, all that the Court is required to satisfy itself is whether the inference drawn by the Inquiry Officer, from the evidence on record, meets the test of preponderance of probabilities. The High Court, exercising the power of judicial review, is entitled to consider whether, while inferring commission of misconduct on the part of a delinquent officer, relevant evidence has been taken into consideration, and irrelevant facts have been eschewed. Inference on facts must be based on evidence which meets the requirements of legal principles. The Court is entitled to arrive at its conclusion on the premise that the evidence adduced by the department, even if it is taken at its face value to be correct in its entirety, meets the requirement of burden of proof, namely - preponderance of probabilities. If, on such evidence, the test of probability has not been satisfied, the Court is within its domain to interfere. (Soni Shankar v. Union of India and Anr (2008) 3 SCC 484.) Inference, from the evidence and circumstances, must be carefully distinguished from conjectures or speculation. There must be evidence, direct or circumstantial, to deduce necessary inferences in proof of the facts in issue. If there are no positive proved facts, oral, documentary or circumstantial from which the inference can be made, what is left is mere speculation or conjecture. Therefore when an inference is made, so as to conclude that a fact in dispute has been held established, there must be some material facts or circumstances on record from which such an inference could have been drawn. (K.S. Gandhi (1991)

2 SCC 716). Bearing these principles in mind let us now examine whether or not the petitioner’s challenge, to the validity of charges 3 and 4, and points 5 and 6 of Charge No. 6 of the first charge-sheet, is valid.

Mr. Alok Mahra, learned counsel for the petitioner, would submit that Charge no 3, in so far as it related to the repair of various parts of the plant, is the responsibility of the Chief Engineer; repair work is undertaken on the recommendations of the Chief Engineer; the petitioner had written several letters that action be taken against the Chief Engineer for frequent breakdowns in the plant; the Chief Engineer was also warned to restrict expenditure within the sanctioned budget, but no action was taken against him by the disciplinary authority; the petitioner did all that was within his powers, so that no loss was caused to the Mill; the charge could not have been established without holding an oral enquiry, and without examining the concerned officials; even the Enquiry Officer had held the Chief Engineer guilty of excess expenditure on repair work, and had recommended that disciplinary action be taken against him; however no action was taken against the Chief Engineer; the enquiry officer has not indicated in his report any expenditure which, according to him, was not necessary; other similarly situated sugar mills, under the control of the disciplinary authority, also exceeded the sanctioned budget under repairs and maintenance; as per the statement given by the Nodal Officer, Uttarakhand Sugars, Dehradun, not only Sitarganj Sugar Mills but other factories had also exceeded the expenditure on repairs and maintenance against the sanctioned budget; the work of repairs and maintenance of the plant is undertaken as per the demand of the Chief Engineer; if it exceeds the sanctioned budget, repair work is undertaken, in anticipation of approval from the head office, during crushing season; otherwise crushing will be affected; a law and order problem would arise if the mill is stopped pending budget approval; the demand for additional budget, under repairs and maintenance, was submitted to the Head Office with full justification; and the work of repairs was carried on in the interests of the Mill in anticipation of approval from the head office.

Charge No. 3 relates to the money spent on repairs and maintenance of machinery during the financial years 2005-06, 2006-07, and 2007-08 in excess of the approved budget; and the petitioner having committed financial irregularities in this regard. The charge is that, during the Year 2005-06,

Rs. 110.38 lacs were spent against the approved budget of Rs. 94.34 lacs; during the Year 2006-07, the approved budget was Rs. 164.00 lacs and Rs. 216.74 were spent; likewise Rs. 242.49 were spent against the approved budget of Rs.180.80 lacs during the Year 2007-08; during the Year 2005-06 a sum of Rs. 16.03 lacs, during the Year 2006-07 a sum of Rs. 52.74 lacs, and during the Year 2007-08, Rs. 61.59 lacs were spent in excess of the approved budget, despite the fact that the technical result of the Sugar Mill was extremely unsatisfactory, and was below the prescribed standards. It is also alleged that the petitioner, in his capacity as the General Manager of the Mill, had no control over his subordinates; he did not take any disciplinary action against them despite negative results; and he had purposefully caused financial loss to the Mill.

In certiorari proceedings, the contention, urged on behalf of the petitioner, that the charges are not established must be examined on an analysis of the findings recorded by the Enquiry Officer on the basis of the documents on record before him, which, in the present case, are the documents annexed to the charge-sheet, and the documents submitted by the petitioner along with his reply to the charge-sheet. We shall confine our examination within the limited parameters of judicial review.

After referring to the documentary evidence in support of the charge, the Inquiry Officer records that the petitioner, in his letter submitted in reply to the charge-sheet, had contended that the Mill was 25 years old, the Mill machinery was in a bad condition, most of the pipelines were fragile and unusable, and the boiler, quad, pan, FMG gear etc. of the Mill were also old; without proper repair of the said equipment, smooth running of the Mill was not possible; 18.87 lac quintals of sugarcane was crushed during the Crushing Season 2003-04, and Rs. 15.70 lac quintals of sugarcane during 2005-06; the precarious financial condition of the Mill, and meager availability of sugarcane, had resulted in the Mill being allotted less budget under the head ‘repairs’; the allotted budget was insufficient for efficient functioning of the mill; essential repairs of Mill machinery parts was necessary; and excess sugarcane crushing was undertaken by the Mill which was 23.15 lac quintals of sugarcane in the Year 2005-06, 32.13 lac quintals of sugarcane in the Year 2006-07, and 26.66 lac quintals of sugarcane in the Year 2007-08.

The Inquiry Officer held that the petitioner’s explanation was not based on correct facts, and was completely misleading; four co-operative sugar mills and two mills in the government sector were being operated under the control of Uttarakhand Sugars; the annual repair budget was provided keeping in view the capacity of the Mill, the availability of sugarcane, the technical needs, and the financial condition of the Mill; sufficient repair budget was granted for the financial years 2003-04 and 2004-05; and the petitioner’s explanation that excess expenditure was incurred on repair work of the Mill during the Years 2005-06, 2006-07 and 2007-08, because of less budget allocation for repairs in the preceding years, was not satisfactory.

After a comparative assessment of the expenditure incurred under the head ‘repairs and maintenance during the Financial Year 2003-04 to 2008-09’, the Inquiry Officer held that a sum, in excess of Rs. 1.00 crore, was spent on repairs during the Financial Years 2006-07 and 2007-08, which was far more than the expenditure incurred in the preceding years; in comparison to the repair expenses incurred during the Financial Years 2003- 04, 2004-05, 2005-06 and 2008-09, excessive and unnecessary amounts were spent in the financial years 2006-07 and 2007-08 during the petitioner’s tenure; while Rs.10.03 lacs, Rs.6.69 lacs and Rs.9.38 lacs were spent on fabrication during the financial years 2003-04, 2005-06 and 2008-09 respectively (both before and after the petitioner’s tenure), in comparison Rs.19.58 lacs were spent during the financial year 2006-07, and

Rs. 32.06 lacs were spent during the financial year 2007-08; in addition, an order regarding release of Rs. 1.5 lacs, against the works undertaken, was still pending; in comparison to the expenditure of Rs. 4.45 lacs, 11.29 lacs, 2.00 lacs and 32.29 lacs under the head boiler station in the earlier years,

Rs. 34.09 and 45.13 were spent during the financial years 2006-07 and 2007-08; Rs. 7.71 lacs and Rs. 8.88 lacs were spent, against Rs.4.88 lacs, Rs.2.59 lacs, Rs. 6.43 lacs and Rs.4.80 lacs in the earlier years; during the financial years 2006-07 and 2007-08, Rs. 14.31 and Rs. 13.10 lacs were respectively spent under the head ‘welding material’ as compared to the expenses during the previous years of Rs. 8.68, Rs. 7.30, Rs. 8.49 and

Rs. 7.66 lacs respectively; likewise, while Rs. 9.05 lacs, 16.92 lacs, 6.07 lacs, 9.71 lacs, Rs.13.68 lacs and Rs.13.82 lacs were spent under the head ‘normal repairs’ during the previous years, in comparison with the financial years 2006-07 and 2007-08 respectively when the expenditure incurred under the same head were Rs. 22.82 lacs and 12.16 lacs and Rs. 21.63 lacs and Rs. 20.85 lacs respectively.

The Inquiry Officer, thereafter, held that Rs. 52.74 lacs and Rs. 61.59 lacs were spent towards repair work, during the financial years 2006-7 and 2007-08, without sanction; no evidence, regarding approval being accorded, was submitted by the petitioner in his reply to the charge-sheet; iron and steel purchases during the said period were not made from the Steel Authority of India Limited, instead they were procured from the open market, which was in clear violation of the prescribed Government rules; in his reply to the charge-sheet, the petitioner had stated that repairs were undertaken under the supervision of the Chief Engineer who had submitted a demand for material / equipment as per the procedure of the Mill, and hence excess expenditure was incurred beyond the allocated budget; the Chief Engineer also seemed to be guilty of incurring expenditure in excess of the allocated budget; and disciplinary action was also required to be taken against him.

The Inquiry Officer held that the petitioner had overlooked the allocated budget, and had incurred unnecessary expenditure; despite having incurred such uncalled for expenditure towards repairs, the technical results of the Mill were extremely unsatisfactory, and against the prescribed standards of the Mill; this clearly indicated that the petitioner did not exercise administrative control over his subordinate officers, which also reflected his administrative incompetence. The Inquiry Officer concluded that because of these financial irregularities, and the petitioner’s failure to exercise administrative control over his subordinates, the Sugar Mill had suffered serious financial losses; and, since the explanation submitted by the petitioner was unsatisfactory, Charge No. 3, leveled against him, stood upheld.

In the order of punishment dated 08.09.2011, the disciplinary authority held that, with respect to Charge No.3, though the petitioner was the General Manager of the Mill, neither did he exercise any control over his subordinates, nor were they warned of disciplinary action being taken against them; in his explanation to the charge-sheet, the petitioner had stated, regarding maintenance and repair of machinery, that the Sugar Mill was 25 years old, its machinery was in a poor condition, and the pipeline of the machinery had melt and burst, and without effecting repairs, it was not possible to run the Sugar Mill smoothly; he had further stated that, when budget is demanded, it is calculated on the basis of the previous year’s rates; in the concerned years, excessive expenditure was incurred in this regard; the petitioner had stated that repair-work was undertaken under the guidance of the Chief Engineer, and expenditure towards repairs was incurred by the Chief Engineer as per requirements; he had also stated that letters were sent to the Head Office regarding the excessive expenditure incurred against norms, and the failure of the Chief Engineer and the Chief Accountant, to follow their duties properly; and the petitioner had, in effect, accepted that expenditure in excess of the approved budget had been incurred.

The disciplinary authority opined that, in the sugar mills, repairs are undertaken every year; the petitioner, as the General Manager, had failed to consider why there was a steep rise in maintenance and repair expenditure; he never recommended that action be taken against the Chief Engineer; as compared to the financial years 2006-07 and 2007-08, the expenditure incurred towards maintenance and repairs in the previous years was far lower; Rs.52.74 lacs and 61.59 lacs was incurred in the financial years 2006-07 and 2007-08 respectively without approved budget for repair and maintenance; the scrap iron, from the old burst steel tank, was used in the fabrication work; however iron and steel, worth Rs. 13.68 lacs and Rs.13.82 lacs, was purchased in the financial years 2006-07 and 2007-08; during that period, iron and steel was purchased from the open market, and not from the Steel Authority of India Ltd, which was in violation of the prescribed Government rules; and the petitioner could not explain how there was an unexpected increase, in repairs and maintenance charges, in the last two years.

In examining whether the findings recorded by the Inquiry Officer, and the conclusion arrived at by the Disciplinary Authority, in holding the petitioner guilty of Charge No. 3, are justified from the evidence on record, we must not forget that the petitioner worked as an Accountant throughout his career, till he was entrusted charge of the post of General manager of the respondent-Mill. It must also be borne in mind that, while the Managing Director of the Sugar Mill Federation is in overall charge of all the Sugar Mills, each particular Sugar Mill is under the control and supervision of the General Manager. The petitioner was the in-charge General Manager of the respondent-Mill, and every other officer, including the Chief Engineer, were subordinate to him. The ultimate responsibility for the efficient functioning of the respondent-Mill was that of the petitioner.

The evidence on record, with respect to Charge No. 3, shows that no control was exercised by the petitioner over the financial expenditure incurred in the respondent-Mill; and needless expenditure, far in excess of the sanctioned budget, was incurred under various heads. In this context it is necessary to note that, for every financial year, a particular amount is sanctioned on an estimation of the expenditure required to be incurred under each particular head. For expenditure towards annual repairs, a particular sum is sanctioned as budget for repairs, keeping in view the capacity of the Mill, the availability of sugarcane, the technical needs, and the financial condition of the Mill. It is not in dispute that a sum, in excess of Rs. 1.00 crore, was spent on repairs during the financial years 2006-07 and 2007-08 which was far in excess of the expenditure incurred, under this head, in the previous years. The finding recorded is also that a sum of Rs. 52.74 lacs and Rs. 61.59 lacs were spent towards repairs during the financial years 2006-07 and 2007-08 without sanction from the head office. In effect, the Inquiry Officer has held that the procedure of obtaining prior sanction from the head office, before incurring expenditure far in excess of what has been provided for in the budget, was not followed by the petitioner, and he failed to exercise control over his subordinates and ensure that the expenditure does not go out of hand. The finding recorded is also that, though the laid down procedure is that steel should be procured only from the Steel Authority of India Ltd., (a Government of India public sector undertaking), the petitioner procured iron and steel, worth Rs. 13.68 lacs and Rs. 13.82 lacs in the financial years 2006-07 and 2007-08, from the open market in violation of the standard procedure. The disciplinary authority has also faulted the petitioner for his failure to exercise control over his subordinates, and in not taking disciplinary action against them, for incurring such avoidable expenditure. The disciplinary authority has also found that, though scrap iron from the old burst steel tank was used in fabrication work, yet iron and steel was purchased from the open market in violation of the prescribed Government rules.

These findings have not been disputed by the petitioner. He, however, blames it on the tremendous increase in the cost of repairs of old machinery, and holds the Chief Engineer responsible. While the Inquiry Officer has held the Chief Engineer to be also responsible for these lapses, the petitioner cannot absolve himself of blame since he was the In-charge General Manager of the respondent-mill, and cannot seek to shift all blame on his subordinates. If, as was contended in the inquiry proceedings, he was not responsible for the lapses, and the blame was entirely that of the Chief Engineer, he should have taken steps to have the Chief Engineer summoned for cross-examination to establish these allegations. Though the Inquiry Officer had informed him, by letter dated 16.02.2009, that he could produce any witness he desired, the petitioner chose not to do so. He cannot place the blame entirely on the Chief Engineer, in as much as the ultimate responsibility to ensure financial discipline, and to avoid expenditure being incurred towards repairs in excess of the sanctioned budget, that too without prior sanction of the head office, is his alone. Any lapse on the part of his subordinates would have necessitated action being taken by the petitioner against those whom he blamed for such lapses. The justification furnished by the petitioner for the complete lack of financial discipline, and for incurring needless expenditure of more than Rs. 1.00 crore without sanction from the Head Office, did not find favour either with the Inquiry Officer or with the Disciplinary Authority. Since these lapses are admitted, but are sought to be justified, this Court would not, in the exercise of its certiorari jurisdiction under Article 226 of the Constitution of India, sit in appeal over the decision of the disciplinary authority or consider whether the explanation furnished by the petitioner, in justification of the unnecessary and wasteful expenditure incurred by him causing huge loss to the respondent-mill, which in turn has resulted in a needless burden on the State exchequer, was

valid. The aforesaid Charge No. 3 was also held, both by the Inquiry Officer and the disciplinary authority, to have been established because the

Procurement Rules of the Government had been violated in purchasing steel not from the Steel Authority of India Ltd, but from the open market.

Suffice it to record our satisfaction that the finding recorded by the Inquiry Officer, and the conclusion arrived at by the disciplinary authority, are neither perverse nor are they based on no evidence. Since Charge No. 3 is held established from the documentary evidence on record, we see no reason to interfere therewith.

VI. CHARGE NO. 4:

Mr. Alok Mahra, learned counsel for the petitioner, would submit that, with respect to Charge No. 4, the petitioner had denied the charge that he had not adopted proper procedure in purchasing parts; the enquiry officer had overlooked the fact that tenders were invited, for purchase of parts by publication in the press; the administrator/DM was requested to nominate his representative; tenders were opened, and negotiations were held in the presence of the representatives of the DM, the purchase committee of the mill consisting of departmental heads and the General Manager, and in presence of suppliers and contractors; since there was no single tender, whose rates for hardware material was the lowest, negotiations were held in the presence of the above committee; Naresh & company was ready to supply all the hardware material at the lowest negotiated rates approved by the committee; due to procedural delay in finalizing the lowest rates, and on the recommendation of the purchase committee, open purchase orders were given to suppliers to supply the material, including Naresh & Company, in order to avoid workers sitting idle, or to prevent the plant from being rendered idle; open purchase orders were issued on the recommendations of the purchase committee, for which the purchase department had prepared a note sheet dated 25-08-2007; the petitioner only gave his approval, to the proposal submitted by the purchase committee, in the interests of the mill; the note sheet prepared by the purchase committee was totally ignored by the Enquiry Officer while holding the petitioner guilty of issuing an open purchase order; no item of stores was ever purchased without an indent from the concerned departmental head; details of the material purchased without an indent has not been supplied to the petitioner; the purchase department can arrange material on the basis of an indent from the concerned departmental head; if any material is arranged without an indent, then the concerned departmental head is responsible; it is necessary that some of the items, which are frequently used, are kept in store; the departmental head, on whose requisition the material was arranged, is solely responsible for purchasing the said items which have remained unutilized as alleged; on receipt of the material, some part payment was made to the suppliers, on the recommendation of the concerned departmental head, in the interest of the work; otherwise supply of material would be affected; this charge involved oral examination of the chief engineer, the concerned official and the supplier, to come to the conclusion, that the petitioner was guilty, but this has not been done; the petitioner is not a technical person, and has no technical knowledge about the parts required for the repair of the plant; arrangement of material, without an indent, is not possible at his end; and oral examination of the concerned officials was necessary to come to the conclusion, which had not been done.

Mr. Alok Mahra, learned counsel for the petitioner, would refer to the material receipts, which were pending due to procedural delay by the accounts department for limited tenders, to submit that the Chief Engineer did not include them in the annual tender list, therefore limited tenders were invited; regarding procurement from Naresh & Co, the petitioner had no knowledge, and the enquiry officer should have enquired about this from the Chief Engineer; open orders were given to Naresh & Co and other suppliers to supply the material at the lowest rates, since the rates were under finalization; in order to keep the mill functional, and not to waste manpower, some material may have been procured in exceptional circumstances for which confirmatory orders, (the purchased material was already received in stores), at the lowest rates approved by the committee were issued; this procedure has been in vogue not only in Sitarganj Sugar Mill, but in other co-operative sugar mills in Uttrakhand and Uttar Pradesh; to substantiate the contention, that other sugar mills also issued confirmatory purchase orders, (purchase order of the material already received in store), to different suppliers during the year 2006-07 and 2007-2008 of several lakh rupees), it may be noted that Bazpur sugar mill issued 68 confirmatory purchase orders, Gadarpur sugar mill issued 125 confirmatory purchase orders, and Nadehi sugar mill issued 186 confirmatory purchase orders; the Enquiry Officer nowhere stated regarding payment made to any suppliers which, according to him, remained unadjusted or of any purchase orders, issued at inflated rates, which were not approved by the committee; since an oral enquiry was not held, and the concerned officials were not examined by the enquiry officer, the conclusion that there has been a deliberate attempt to cause financial loss to the mill, as alleged in the article of the memorandum of the charge, is not based on any substantial evidence; this is a figment of imagination, of the officer issuing the memorandum, which indicates that the memorandum has been issued with a closed and pre-determined mind only to hold the petitioner guilty of the charges; and it is wrong to hold the petitioner responsible for the acts of other officials.

On the other hand Mr. T.A. Khan, learned Senior Counsel appearing on behalf of respondent nos.2 and 3, would submit that, in reply to charge no.

4, the petitioner had submitted that the goods were purchased by him keeping in view the urgent need to procure these goods, and as per requirement;

there was neither approval prior to purchase, nor was any purchase order issued; though there was no requirement, goods were purchased from a particular firm; the onus of proof lay upon the petitioner which was not discharged by him; details of the goods purchased, before issuance of the purchase order, is for a value of Rs. 38,69,185.80/-; and details of fresh purchases, details of sufficient equipment /instruments in the stores, and payment made in cash, during 2006-07, to a particular firm, has been placed on record.

With respect to Charge No.4, the Inquiry Officer records that the petitioner had informed, in his reply to the charge sheet, that sometimes purchases for the immediate need of the Mill were being unduly delayed on the proper purchase procedure being adopted and, consequently, the repair / process work of the Mill were also being unnecessarily delayed; hence, on the recommendation of the purchase committee and with the consent of the concerned parties, such material / equipment were purchased on condition that a purchase order would be issued on the basis of the lowest rates as approved by the purchase committee; the petitioner had not enclosed any evidence regarding the unavoidable / inevitable conditions which necessitated such procurement; this established that the equipment / material were obtained / purchased, sans compliance of the purchase process of the Mill; during the financial year 2007-08, equipment / material worth lacs of rupees were obtained by the petitioner from certain specific suppliers without any purchase order being issued; M/s Naresh and Company was the most prominent of such firms; the said firm was paid Rs. 10 lacs even without a purchase order being issued; this disclosed that equipment / material were received, during this period, without purchase orders being issued; the material / equipment, as highlighted in Enclosure -10 of the report, were procured from M/s Naresh and Company; such material/equipment were either partially utilized or not utilized at all; as a result material/equipment remained untilized in the form of inventory; this showed that unnecessary purchases of store material was made without assessing the actual need of the Mill; there was an unprecedented increase in store inventory during the financial years 2006-07 and 2007-08; this was clear from the records, and the remarks of the Chartered Accountant in the balance-sheet for the Financial Year 2007-08; and this contention of the petitioner, that such purchases fell under the category of ‘immediate necessity’, was highly questionable.

The Inquiry Officer held that most of the material/equipment were received / obtained during the closure session of the Mill; it could not, therefore, be categorized as ‘emergency purchases’; tenders were invited for supply of certain items in June 2007 against which purchase orders were issued in January, 2008, after a lapse of 7 to 10 months; during this period, all material was obtained from M/s Naresh and Company; the said firm was neither issued any purchase order for supply of material/equipment, nor was a letter of intent issued to them; the petitioner did not explain how M/s Naresh and Company came to know, and had received information, of the need of the Mill, and under whose verbal orders the Mill had received such material/equipment; for the material/equipment, received by the Mill post April, 2007, tenders were invited through different newspapers in June/July, and negotiations were held for finalization of rates; material worth Rs.4.4 lacs was not included in these tenders; after some interval, limited tenders were invited on 31.03.2008 instead of open tenders; even equipment, covered under the rate contract issued by Uttarakhand Sugars, were purchased from M/s Naresh and Company, instead of from the rate contract firm; the petitioner was aware of receipt of these equipment / material without purchase orders; instead of putting an end to this improper practice, payment of lacs of rupees were made to Naresh& Co. during these financial years; the reports called for by the petitioner, from Accounts, Stores and the Chief Engineer, mentioned that these equipment/material had been procured without issuing purchase orders; likewise supply / adjustment of 174 material receipts remained pending; Rs. 30.37 lacs were spent on fabrication and erection work against the approved budget of 21.35 lacs, and additional work for Rs.1.5 lacs was carried on; repeated demands for payments were being made by contractors; and this work was also undertaken without issuing a work order.

The Inquiry Officer further held that, during his tenure, the petitioner had obtained most of the material/equipment lying in stores without purchase orders; such equipment were purchased without any genuine need; it is only after payment was made, were purchase orders issued to validate such purchases; the petitioner, in his reply to the charge-sheet, had only stated that these steps were necessary, and had been undertaken in the interest of the Mill, which was a tacit admission of the charge; it was clear that the petitioner had violated the purchase process / rules applicable in the Mill; and such acts fell in the category of ‘financial irregularities’ committed by the petitioner. Charge No. 4 was also held proved.

With regards Charge No. 4, the disciplinary authority held, in his order dated 08.09.2011. that, during the financial year 2007-08, lacs of rupees were paid to M/s Naresh& Co. for supply of material without purchase orders being issued; substantial quantity of the material was procured from M/s Naresh and Company which were not utilized, and were still lying as inventory items in stores; the Audit Report of the Chartered Accountant confirmed these facts; the records disclosed that, while tenders were invited for some essential material in the month of June, 2007, purchase orders were issued 7 to 10 months thereafter in April, 2008; in the interregnum, the entire material was received from M/s Naresh and Company; neither any purchase order nor any letter of intent was issued for procurement of material from the said firm; there was no explanation why and how M/s Naresh and Company came to know of the extent of material required to be supplied to the Mill, or on whose verbal orders the material was supplied; for some material supplied after April, 2007, the rates were invited, by way of limited tenders, through newspapers in June/July, instead of open tenders; the petitioner was aware that material was received even without purchase orders being issued, and he had made payment in crores of rupees without supporting documents; the report called for by the petitioner, from Accounts, Store and Engineering Departments, clearly showed that material had been procured without purchase orders; the same procedure was followed in fabrication and erection works; the petitioner, without adhering to purchase norms and even though such material was not even required by the Mill, had received substantive quantity of the material, and had made payment; the purchase orders, subsequently obtained, was a mere formality; the petitioner was, basically, an Accountant; he was well versed in Accounts, and was aware of the Rules; purchase of material without purchase orders, and issuing purchase orders later, reflected serious financial irregularities; failure to adhere to the Rules had resulted in misuse of funds; it was not as if there was any calamity; such acts were undertaken in a manner which indicated that the modus operandi of the petitioner was improper and undesirable; the petitioner did not discharge his managerial responsibilities; and Charge No. 4 was also established.

Before examining the findings of the Inquiry Officer and the Disciplinary Authority with respect to Charge No. 4, it is necessary to briefly understand the procedure followed in procurement of material/goods by the respondent-mill. When material is required by any department of the Mill, an order or requisition for goods is placed by the concerned department which is called an indent. On receipt of the indent, a purchase order is placed by the mill on the suppliers. The purchase order is a commercial document issued by a buyer to a seller indicating the type of product required, the quantity required of the said product, and the price at which the said product should be supplied. It is on receipt of a purchase order, that the supplier should then effect supplies of the material/goods referred to in the purchase order, and the mill, on receipt of such material, records it in its inventory as material receipt. On receipt of such items against the purchase order, the quantities received are updated in the inventory, and serve as proof of such material having been received in the factory. It is, thereafter, that payment is made to the supplier.

The process of identifying the supplier, on whom a purchase order should be placed, is through a tender process. Normally an open tender system is resorted to for procurement of material. An open tender is a bidding process that is open to all qualified bidders, where the bids are opened in public for scrutiny, and the supplier is chosen on the basis of the price and quantity quoted by him. This open tender process is also called a Competitive Tender or a Public Tender process of procurement of material. Unlike an open tender, a Limited Tender is addressed only to a limited number of suppliers i.e. only to selected persons. While an open tender ensures transparency, and is considered a fair and reasonable mode of procurement of material, a limited tender is invited where it is not possible to resort to an open tender. Even in the case of a limited tender, identification of the suppliers, from whom alone tenders should be invited, must be fair and transparent.

Bearing these aspects in mind let us now examine whether the allegations leveled against the petitioner, with respect to Charge No. 4, are established from the documentary evidence on record. The finding recorded by the Inquiry Officer is that, during the financial year 2007-08, the petitioner had secured equipment/material worth lakhs of rupees without any purchase order being issued to the suppliers; and M/s Naresh and Co. was the most prominent of such suppliers to whom Rs. 10.00 lacs was paid even without a purchase order being issued. As rightly held by the disciplinary authority, the petitioner was unable to explain how M/s Naresh and Co. even came to know of the quantity of the material to be supplied to the respondent-mill, and on whose verbal orders the materials were supplied by them. In fact material was procured from M/s Naresh and Co. even without finalization of the price. Payment was made to them for such supplies and, thereafter, limited tenders were invited to justify the rate at which the material was procured from M/s Naresh and Co. The Inquiry Officer has also held that tenders were invited for supply of certain items in June, 2007 and pursuant thereto purchase orders were issued in favour of such tenderers, after a lapse of 7-10 months, in January, 2008; and, in the interregnum, all material was procured from M/s Naresh and Co. in whose favour neither was any purchase order, for supply of any material/equipment, issued, nor did the petitioner state how M/s Naresh and Co. received information regarding the quantity of material which the respondent-mill needed. The Inquiry officer also held that the petitioner, though aware of receipt of the material/equipment without purchase orders, had nonetheless made payment of lakhs of rupees to M/s Naresh and Co. during these financial years, instead of putting an end to these illegal practices; and procurement of these material was wholly unnecessary, since they were still lying unutilized in the stores of the respondent-mill.

The Disciplinary Authority held that, though the petitioner was aware that the material was received without a purchase order, he had still made payment of crores of Rupees without supporting documents; similar procedure was followed by the petitioner in fabrication and erection works, and without adhering to the purchase norms and though such material was not even required by the Mill, the respondent-mill had received substantial quantities of the material; and the petitioner had made payment for such supplies, and had subsequently obtained purchase orders which were a mere formality. The Disciplinary Authority also held that the petitioner, an Accountant, was well versed in accounts and was aware of the Rules that material could not be purchased without a purchase order; such practices reflected not only his failure to adhere to the Rules which resulted in misuse of funds, but also reflected serious financial irregularities in the functioning of the respondent-mill.

While admitting that such practices existed, the petitioner claims that payment was made to suppliers, on the recommendations of the concerned departmental head, in the interest of the work. To establish this claim of his, the petitioner should have examined the departmental head and other officials to prove that such material was procured only because they had sought for such supplies to be made immediately. On the documentary evidence on record disclosing that the Procurement Rules had been given a go-by, and material was purchased from suppliers such as M/s Naresh and Co. without even issuing a purchase order and in flagrant violation of the Rules, the onus shifted on the petitioner to establish that there was ample justification for violation of the Procurement Rules and Regulations.

There is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of the explanation and the nature of the charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation. (Orissa Mining Corporation and Ors. v. Ananda Chandra Prusty (1996) 11 SCC 600) .The onus of proof rests upon the party alleging the invalidity of an order. (Nemi Chand Nalwaya (2011) 4 SCC 584). The petitioner has not discharged this burden of proof. The material on record discloses that goods/material worth Rs.38,69,185.80/- were purchased, even before issuance of a purchase order, and most of such purchases were lying unutilized in the stores of the respondent-mill. Even if the submission of Mr. T.A. Khan, learned Senior Counsel, that such a procedure was resorted to for extraneous reasons, is ignored, the documentary evidence on record still reflects grave and serious financial irregularities in the process of procurement.

The petitioner’s complaint is that, examination of these officials, in an oral enquiry, would have revealed that it is not he, but those officials, who were responsible for such lapses. It was for the petitioner to seek an oral enquiry, and to produce such witnesses, for it is well settled that the enquiry officer, holding a domestic enquiry, cannot take any effective steps to compel the attendance of witnesses, and consequently cannot be said to have caused any procedural irregularity in not causing their production. (Tata Oil Mills Company Ltd.(1963) II LLJ 78;S hambunath Goyal v. Bank of Baroda AIR 1984 SC 289). The enquiry officer has no power as a court to summon witnesses. Just as the employer produces its witnesses, the delinquent employee should take steps to produce his. The enquiry officer has neither the power to produce, nor compel the employer to produce, witnesses for being cross-examined by the delinquent employee. (Tata Engineering & Locomotive Company Ltd. v. S.C. Prasad (1969) 3 SCC 372).

Where the case of the delinquent employee is that the charges are based on the acts of other employees in the office, it is for the charged employee to establish his case. The department is not expected to examine those other employees in the office to show that it is those employees who were responsible, and not the delinquent employee. (Ananda Chandra Prusty (1996) 11 SCC 600). Nothing prevented the petitioner from producing witnesses in his defence. The mere fact that these officers were not examined as witnesses cannot, automatically, lead to the conclusion that the enquiry proceedings are vitiated. As long as the evidence on record is sufficient to establish the charges, non-examination of certain witnesses would not vitiate either the departmental enquiry held against the delinquent employee or the punishment imposed on him. We are satisfied that, on the basis of the documentary evidence on record, Charge No. 4 has also been established.

VII. CHARGE NO. 6 :

While Sri Alok Mahra, learned counsel for the petitioner, would submit that the Inquiry Officer was not justified in holding the petitioner guilty of

Charge No. 6 also, Sri T.A. Khan, learned Senior Counsel, would submit that Points 5 and 6 of Charge No. 6 are extremely serious; and the evidence on record sufficed to establish these charges.

Charge No. 6 related to the irregularities committed by the petitioner in the Sitarganj Sugar Mill. Point 5 thereof related to the purchase of electrodes in excess of requirement, and Point 6 related to direct purchase of sugarcane by the petitioner, during the financial years 2005-06 and 2006- 07, violating the Cane Supply and Purchase Rules, 1953. With respect to Point 5 of Charge No. 6, the Inquiry Officer held that, inspite of the poor financial position of the Mill, electrodes were purchased in excess of the requirement; the petitioner had claimed that some electrodes were purchased for the steel molasses tank and, because of non-availability of steel, electrodes were left in stock; for construction of the steel molasses tank, steel should have been procured first, and electrodes could have been purchased at any time thereafter under rate contract; the petitioner nowhere mentioned in his explanation regarding the efforts he made to procure steel from Steel Authority of India Ltd; and because of the petitioner’s short sightedness, the Sugar Mill had suffered a huge financial loss. As regards Point No. 6, which relates to direct purchase of cane in the Financial Years 2005-06 and 2006-07, in violation of the Cane Supply and Purchase Rules, 1953, the Inquiry Officer held that the petitioner, in his explanation, had stated that this decision was taken to procure more supplies for the Sugar Mills, and he had tacitly accepted his action in this regard.

The Inquiry Officer further observed that, while the petitioner claimed that he had successfully secured a claim of Rs. 1.50 crore from the Insurance Company, the records disclosed that, as against the claim of Rs. 1,55,62,166.65, the Insurance Company had only paid a sum of Rs.1,39,61,013.00; the petitioner had paid Rs. 8,23,128.00 to M/s Arix Consultant Pvt. Ltd. as fees for the advice rendered towards this insurance claim; though Rs. 16,01,153.55 was received, less than the claim of Rs. 1,66,62,166.55, from the Insurance Company, no effort was made to recover this amount in future; and the expertise of the advisor was questionable.

With regards Point Nos. 5 and 6 of Charge No. 6, the disciplinary authority held, in his report dated 08.09.2011, that the petitioner had deceived the District Magistrate informing him that the insurance claim was heavy, and an advisor should be appointed for recovery of the amount claimed; even without a dispute with the Insurance Company, an advisor was appointed, and Rs.8,28,129.00 was paid as advisory fees; as against the claim of

Rs. 1,66,62,166.55, Rs. 16,01,153.55 was received in short; though a demand of Rs.50 lcas was raised towards excise duty, the petitioner had not taken any steps to seek waiver of the demand on the ground that the molasses tank was damaged, and no excise duty was therefore payable; no explanation was forthcoming as to why the equipment was purchased in the first instance; the petitioner was the In-charge General Manager of the Sugar Mill, and could not blame his subordinates; and as he was earlier a Chief Accountant, he was well aware of the rules which were required to be followed in purchase of material/equipment.

The disciplinary authority concluded that the petitioner was grossly irresponsible in the discharge of his duties; continuing his services in future may result in heavy financial loss to the Mill; and his services should, therefore, be discharged with immediate effect. While holding that allegation no.1 in the first charge-sheet was not proved, the disciplinary authority held that Charge Nos. 2 to 5 were proved, and Point Nos.5, 6 and 10 of Charge No. 6 had also been proved. For the allegations held established against the petitioner in both the charge-sheets, the disciplinary authority held that the petitioner should be terminated from service with immediate effect.

Point No. 5 of Charge No. 6 relates to purchase of electrodes in excess of requirement. Electrodes are required for welding of iron or steel. The Inquiry Officer has held that electrodes, far in excess of the requirement of the respondent-mill, were purchased, and the petitioner’s contention that purchase of electrodes was necessary for construction of the steel molasses tank was not tenable, in as much as, for construction of the steel molasses tank, steel should have been procured first, and electrodes later. The Inquiry Officer has also held that such electrodes, even if required, should have been procured on a rate contract basis. A rate contract is a contract for supply of stores at specified rates during the period covered by the contract. Rate contract suppliers are finalized periodically, and not for a specific procurement. During the currency of the rate contract, material is procured from such suppliers alone at the contracted rate. The finding recorded by the Inquiry Officer is also that, instead of procuring electrodes from such rate contractors, the petitioner had purchased it from others, even before purchasing steel; and most of the electrodes were still lying unutilized, as inventory items, in stores. Reference is also made by the Inquiry Officer to the Audit Report of the Chartered Accountant which confirms these facts. Yet another aspect on which the Inquiry Officer has faulted the petitioner is that, with respect to an insurance claim of Rs. 1.50 crores, the Insurance Company had only made payment of Rs. 1,39,61,013/- which was less by Rs. 16,01,153.55/- of the claim; and, even without making any efforts to recover the balance amount, a sum of Rs. 8,23,128.00 was paid to a consultant who was appointed with respect to this insurance claim.

The disciplinary authority, while agreeing with the findings of the Inquiry Officer, has also held that the petitioner was the In-charge General Manager of the respondent-mill and could not blame his subordinates; he was earlier the Chief Accountant, and was well aware of the rules which were required to be followed for purchase of material/equipment; he was grossly irresponsible in the discharge of his duties: and continuing his services may result in heavy financial losses to the respondent-mill.

The documentary evidence on record clearly establish that the petitioner is guilty of Charges 3 and 4 and Points 5 and 6 of charge 6 of the first charge-sheet. All these charges held established reflect grave and serious financial irregularities being committed in the running of the respondent-mill, financial indiscipline on the part of the petitioner as the In-charge General Manager, and his having acted in flagrant violation of the prescribed Procurement Rules. These serious charges of misconduct of breach of duty, which have been established on the basis of the documentary evidence on record, justify the services of the petitioner being terminated. The conclusion of the Disciplinary Authority that continuing the petitioner in service would only result in huge financial losses being further caused to the respondent-mill is, in the light of facts and circumstances narrated hereinabove, wholly justified.

In this context it must be borne in mind that awarding appropriate punishment is in the exclusive jurisdiction of the punishing/disciplinary authority, and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. (Kharak Singh (2008) 8 SCC 236). It is not for the High Court, in proceedings under Article 226 of the Constitution of India, to sit in appeal over the decision of the disciplinary authority regarding the punishment to be imposed for the misconduct held proved. The nature of punishment to be imposed, for proved misconduct, is in the employer's realm and it is only if the punishment is one which could not have been imposed at all, or is one which shocks its conscience, would the High Court, in proceedings under Article 226 of the Constitution of India, interfere. So long as the punishment does not shock its conscience, the High Court would not go into the proportionality of punishment, or substitute the same with a lesser or different punishment. (P. Gunasekaran (2015) 2 SCC 610; B.C.Chaturvedi (1995) 6 SCC 749; G. Ganayutham (1997) 7 SCC 463O; m Kumar v. Union of India (2001) 2 SCC 386; Coimbatore District Central Coop. Bank v. Employees Assn. (2007) 4 SCC 669; Coal India Ltd. v. Mukul Kumar Choudhuri (2009) 15 SCC 620 ;Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T0.T. Murali Babu (2014) 4 SCC 108.) We see no reason, therefore, to interfere with the order of punishment imposed, by the disciplinary authority, on the petitioner.

VIII. SECOND CHARGE-SHEET :

Mr. Alok Mahra, learned counsel for the petitioner, would submit that the 2nd charge sheet was issued on 30.10.10 containing eight charges; in his reply submitted to the 2nd charge sheet, on 8.7.2011, the petitioner had requested that certain witnesses, namely the Chief Engineer, the Chief Chemist, the Chief Cane Officer and the Accounts Officer be examined, and he be permitted to cross examine them; no oral enquiry was held, and no departmental head was examined to substantiate the charges leveled against the petitioners; no date was fixed by the enquiry officer for conducting the enquiry; the petitioner was not afforded any opportunity to cross examine the witnesses; admittedly, the enquiry officer examined the records behind the petitioner’s back, and submitted his report dated 8.7.2011; and the whole enquiry proceedings are vitiated for violation of principle of natural justice and fair play in action.

While the submission of Mr. Alok Mahra, learned counsel for the petitioner, that the second charge-sheet is vitiated for non-observance of the rules of natural justice cannot be brushed aside, it is unnecessary for us to examine the validity of the enquiry report, relating to the second charge-sheet, on this ground, or whether the findings recorded by the Inquiry Officer established the charges leveled against the petitioner in the second charge-sheet, for we are satisfied that Charges 3 and 4, and Points 5 and 6 of Charge No. 6, of the first charge-sheet, which are established by the documentary evidence on record, and the order of the disciplinary authority terminating the services of the petitioner, do not necessitate interference.

It is well settled that even if some of the several charges, levelled against the delinquent employee, are held to have been established, the High Court, in proceedings under Article 226 of the Constitution of India, would not interfere, if the punishment imposed is one which could have been imposed on the charges held established. If the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing punishment on the delinquent employee. The Court has no jurisdiction, if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because, in respect of some of the findings but not all, it appears that there had been violation of the rules of natural justice. (State of Orissa v. Bidyabhushan AIR 1963 SC 779 ;and Niranjan Singh AIR 1969 SC 966). It is unnecessary for us, therefore, to examine the validity of the inquiry report with respect to the second charge-sheet.

IX. ARE THE CHARGES HELD ESTABLISHED AGAINST THE PETITIONER, MERE PROCEDURAL LAPSES?

Mr. Alok Mahra, learned counsel for the petitioner, would submit that all charges, even if taken at face value, indicate nothing beyond procedural lapses, and none of them is in respect of embezzlement or dishonest intention on the part of the petitioner; error of judgment or inefficiency, on the part of an employee, is not misconduct; this vital aspect was overlooked while issuing the charge sheets to the petitioner; whatever decisions were taken by the petitioner were in the best interests of smooth running of the factory; and every reasonable and prudent person would have acted in the same manner as the petitioner did.

The submission of Mr. Alok Mahra, learned counsel for the petitioner, that, even if the charges are presumed to have been held to be established, it reflects a mere error of judgment or inefficiency which would not justify disciplinary action being taken, does not merit acceptance. The charges held established are of grave and serious financial irregularities, financial indiscipline of a very high order, and flagrant violation of the Procurement Rules, resulting in huge financial loss being caused to the respondent-mill. The petitioner was the In-charge General Manager and, for such illegal acts, it is he who must take ultimate responsibility. Causing such a heavy loss to the respondent-mill, incurring needless expenditure, and giving a go-by to the prescribed Rules and Regulations, do not reflect a mere error of judgment, but are acts of gross negligence and complete disregard by the petitioner to the discharge of his lawful duties. The submission, that every reasonable and prudent person would have acted in the same manner, is untenable. Even if the petitioner is held only to have been negligent in the discharge of duties, negligence may also amount to misconduct depending upon its grave or irreparable resultant damage. (Dr. Noorul Ahad 2008 SCC OnLine Pat 852; andU nion of India v. J. Ahmad AIR 1979 SC 1022) The attempt to brush aside such grave and serious financial irregularities, and flagrant violation of the Procurement Rules, as mere procedural lapses is not justified.

X. CONCLUSION :

Viewed from any angle, we see no reason to interfere with the order of punishment imposed, on the petitioner, by the disciplinary authority. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.