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Judgment
By Justice Rajiv Joshi, Member (Judicial):
Heard Mr. Shri L.S. Kushwaha, learned counsel for the applicant and Shri Chakrapani Vastayan, learned counsel for the respondents at the time of hearing.
The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
I. "to quash impugned order dated 05.11.2020 passed by respondent-4/Disciplinary Authority and order dated 25.03.2021 passed by respondent No.3/Appellate Authority.
II. This Hon'ble Court may be pleased to direct the respondents to reinstate the applicant in service with all consequential benefits
III. To issue any other order of direction which this Hon'ble Court may deem fit and proper in the Circumstances of the case.
IV. To award cost of the original application in favour of the applicant."
The brief facts as narrated in the Original Application are that as under :
The applicant was posted as Tailor (MCM) in the Ordnance Equipment Factory Kanpur. On 18-10-2019, he went to his home during the lunch hour and suddenly fall ill as the applicant is a patient of diabetic and hypertension. The applicant is also chronic patient of Free Urinary Cortisol of Hypertension with diabetes mellitus and in this regard, he was given permission for his treatment in Regency Hospital Limited ,Kanpur vide order dated 24-09-2019 passed by Deputy General Manager Head Office OPF, Kanpur for 6 months.
The residential quarter of the applicant is very near to his office and he used to go at his residence in lunch hour to take meal by motor cycle. On the aforesaid date i.e. on 18-10-2019, when he went his residence for lunch hour, a sudden inspection was conducted by defence section between 15:35 hours to 15:55 hours, wherein he was found absent. However, he informed telephonically at about 3PM to his sectional incharge Shri B.K.Pal, Junior Works Manager (JWM) that his blood pressure was suddenly exceeded and requested for grant of leave for the whole day as the applicant has to visit at the hospital for his treatment.
On 21.10.2019, the applicant resumed his duties after obtaining the medical certificate from the competent Medical Officer and he came to know by his section incharge Shri B. K. Pal, JWM that on 18-10-2019 a surprised check was held by a team of the officers in the section and he has intimated them about the facts for absence of applicant on the ground of illness.
Suddenly on 28-11-2019, the applicant was served with a memorandum of charge alleging him guilty of the unauthorizedly absent from his work place. It was stated therein that a surprise inspection was held on 18-10-2019 between 15.35 to 15.55 in section 4-C in the gang number 348 and the applicant was found unauthorizedly absent from duty. In the Article 2 of the charge memo, the applicant was held guilty of absent from his place of duty without any intimation of the authority and in Article-3, the respondents have mentioned that the reference of the some previous incidence of absence and details of the penalties.
Subsequently, Inquiry Officer as well as Presenting Officer were appointed and during the inquiry, the statement of prosecution witnesses were recorded, wherein Shri B.K. Pal (PW) in his statement in chief has categorically narrated that during the lunch hour, the applicant left the office, but he informed telephonically at about 3:00 pm that he is not well and is unable to join his duties for rest of the day and sought leave.
The presenting officer has also submitted the written brief, wherein it was admitted that the sectional incharge of the applicant, namely Shri B.K. Pal has made a statement that on 18.10.2019 at about 03:00 pm, the applicant called him on telephonically and intimated aforesaid fact.
On 15.09.2020, the Inquiry Officer submitted his inquiry report, wherein it has been observed that despite the fact that the applicant was absent from duty during 15:35 to 15:55, but the statement of the sectional incharge during the court of inquiry is that the charge official has intimated him about his physical condition and request of absence and thereafter putting his signature on the inspection report appears to be a mistake by the section incharge and on the basis of the same, his case may be sympathetically considered.
The inquiry officer did not prove any charge against the applicant because the action of applicant was not deliberate on the basis of statement of PW B.K.Pal and the applicant was absent because of his ill health.
The copy of inquiry report was served upon the applicant and on 01.20.2020, he submitted his reply that his absence was not deliberate and unauthorized and the inquiry officer also not specifically proved any charge against the applicant and therefore with lenient approach the proceedings may be dropped and the applicant may be exonerated from the charges.
However, the Disciplinary Authority passed order dated 05.11.2020, by which, the applicant was awarded punishment of removal from service w.e.f. 09.11.2020.
Against the order dated 05.11.2020, the applicant preferred a departmental appeal before the respondent no.3 on 09.12.2020. The Appellate Authority vide order dated 25.03.2021, modified the penalty of removal from service into compulsory retirement.
Hence, this original application has been filed.
In reply, counter affidavit has been filed from the side of the respondents on 11.02.2025, wherein it has been stated as under:-
The applicant was posted as a tailor (MCM) in Ordnance Parachute Factory, Kanpur. On 18/10/2019 during the surprise check between 15:35 to 15:55 hrs he was found unauthorised absent from duty place. The Disciplinary Authority had sufficient documentary evidence for the proposed disciplinary action against the applicant. The applicant was habitual to unauthorised absenteeism.
At the time of inquiry proceedings, another inquiry proceedings were going on against the applicant for another report of misconduct of unauthorized absence on 18.11.2017 and total 24 administrative and disciplinary actions taken against the applicant during his entire service period ( which mainly and mostly consisted of proven allegations of unauthorized absence from the place of work), which confirmed that he did not improve his conduct and due to which, major penalty of removal from service was imposed upon him twice during his service period.
The Disciplinary Authority removed the applicant from services vide order dated 05.11.2020, but the Appellate Authority after taking lenient view modified the punishment awarded against the applicant and imposed the punishment of compulsory retirement in place of removal from services. The date of unauthorized absence is 18.10.2019, but the medical documents, for which, he was granted permission is of 24.09.2019. The figures of illness are mis-matched. The applicant has not applied any kind of leave for the aforesaid day.
In the past two instances i.e. 18.11.2017 and 18.10.2019, he went to his residence during lunch break and surprisingly, he complained fever, diarrhoea /loose motion and was advised to take rest and on both the occasion, during surprise check, he was found absent and Office/In-charge of his duty place confirmed his unauthorized absence from the duty. He was habitual unauthorized absence.
A dispensary is available in the factory for the health of the employees and if the applicant had not intended to be absent from the factory unauthorizedly, he would have attended duty, he will take treatment. During the surprise check as well as surprise check report, PW B.K. Pal, head of Section was also present and he had not informed at that time regarding prior intimation of applicant for leave and as such, claim of the applicant regarding he has already given information to Shri B.K. Pal is not acceptable.
The allegations made in the memorandum(chargesheet) dated 28/11/2019 against the applicant have already been found proved in the inquiry proceedings. The applicant was afforded opportunity to defend his case, but his reply was not found satisfactory.
In reply, rejoinder affidavit has been filed by the applicant on 06.02.2025, wherein, reiterating the same averments as made in Original Application.
Learned counsel for the applicant assailed the impugned orders on the ground that the alleged memorandum of charge dated 18.11.2019 has been issued with an extraneous or collateral consideration with bias. Article 1 of the memorandum seems to be introduced without application of mind. The Inquiry Officer has not proved the charges beyond doubt. The penalty imposed upon the applicant appears to be excessive and disproportionate with the charges. The Disciplinary Authority as well as Appellate Authority failed to consider that the prosecution officer itself has given its written brief and have analyzed and concluded that on the date of incident the applicant was absent after information to his sectional incharge on the ground that he had suddenly fallen ill and for which, he has already submitted a medical certificate.
Learned counsel for the applicant further submitted that without making any preliminary inquiry or seeking any explanation from the applicant, respondents served memorandum of charges under rule 14 of CCS Rules, 1965. The Disciplinary Authority sought explanation to the applicant within 10 days of the receipt failing which it will be presumed that he has nothing to say and ex- party enquiry shall be held.
The vital witnesses like the Doctor has not been examined by the Inquiry officer and as such the entire inquiry proceedings vitiates. Article 3 of the memorandum states the past conduct of the applicant, which do not constitute misconduct so far as the present chargesheet is concerned.
To support of this contention learned counsel for the applicant placed heavy reliance on the following judgments:-
In case of Anil Kumar Vs. Presenting Officer, 1983 (SC) 1121 ii. In case of Khem Chand Vs. Union of alndia & Ors. Reported in 1958 AIR 300
In case of State of UP & Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772
In case of R.C. Sood Vs. High Court of judicature at Rajasthan, reported in (1998) 5 SCC 493.
Learned counsel for the applicant lastly submitted that impugned orders dated 05.11.2020 passed by respondent-4/ Disciplinary Authority and order dated 25.03.2021 passed by respondent -3/Appellate Authority is liable to be quashed and set aside and the respondents be directed to reinstate the applicant in service with all consequential benefits.
Per contra, learned counsel for the respondents submitted that the applicant was admittedly found absent from his place of duty during the surprise inspection conducted on 18.10.2019 between 15:35 and 15:55 hours. The applicant had neither obtained leave nor taken any formal permission to remain absent from duty. The medical permission granted to him vide order dated 24.09.2019 did not authorize him to leave the workplace on the date of the incident.
Learned counsel for the respondents further submitted that the applicant's claim of having informed his Sectional In-charge telephonically about his illness could not justify his absence, particularly when no leave application was submitted by him. The incident was not an isolated instance of misconduct and that the applicant was a habitual absentee. During his service, as many as 21 administrative and disciplinary actions had been taken against him, mostly relating to unauthorized absence, and major penalty proceedings had also been initiated against him on earlier occasions. It was contended that a similar incident had occurred on 18.11.2017, when the applicant had left his workplace during lunch hours and was found absent during a surprise inspection. Thus, the past conduct of the applicant was rightly taken into consideration while determining the appropriate penalty.
Learned counsel for the respondents further submitted that the disciplinary proceedings were conducted strictly in accordance with the prescribed procedure and the applicant was afforded adequate opportunity to defend himself. The Disciplinary Authority, after considering the inquiry report and the applicant's representation, imposed the penalty of removal from service. However, the Appellate Authority, taking a lenient view and considering the overall circumstances, modified the punishment of removal to compulsory retirement. Therefore, substantial consideration had already been shown to the applicant at the appellate stage.
We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
From perusal of the records, it is noted that it is evident that a charge-sheet/memorandum of charges was served upon the applicant alleging that he had remained unauthorizedly absent from his place of duty on 18.10.2019. The allegation was that during the surprise inspection conducted between 15:35 and 15:55 hours, the applicant was found absent from his place of duty without any prior permission or sanctioned leave and his past conduct was also mentioned. The applicant participated in the departmental inquiry and was afforded adequate opportunity to defend himself. The Inquiry Officer, after considering the evidence and material brought on record, submitted his inquiry report dated 15.09.2020. Thereafter, the Disciplinary Authority, after considering the inquiry report and the representation submitted by the applicant, passed the impugned order dated 05.11.2020 imposing the penalty of removal from service with effect from 09.11.2020. Against the said order, the applicant preferred a departmental appeal and the Appellate Authority, vide order dated 25.03.2021, took a lenient view and modified the penalty of removal from service to that of compulsory retirement. For better appreciation of the matter, the order dated 25.03.2021 is quoted as under:-
5.जांच अधिकारी ने अपनी जांच रिपोर्ट संख्या निल, दिनांक 15.09.2020, महाप्रबंधक / अनुशासनिक प्राधिकारी को प्रस्तुत किया और कहा कि सुरक्षा अनुभाग द्वारा किए गए औचक निरीक्षण के दौरान श्री योगेन्द्र प्रसाद निगम के कार्यस्थल से अनधिकृत रूप से अनुपस्थित पाये जाने एवं आचरण नियमों का आभ्यासिक उल्लंघनकर्ता होने के दोनों पहलुओं पर कोर्ट ऑफ इन्क्वायरी के दौरान रिकॉर्ड में आये तथ्यों और साक्ष्यों तथा घटना के परिस्थितिजन्य कारकों के सापेक्ष सम्यक और गहन विचार किया गया। अपने लिखित निष्कर्ष में जांच अधिकारी ने यह स्पष्ट रूप से अंकित किया कि "अभियोजन पक्ष के दस्तावेजी साक्ष्य और वैयक्तिक साक्षियों के अंकित बयान से इस बात की पूर्ण पुष्टि होती है कि आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम (मद-टेलर/एमसीएम, टि.सं. 8517/एल, सी 4 अनुभाग, आयुध पैराशूट निर्माणी, कानपुर) दिनांक 18.10.2019 को अपराह्न 15.35 बजे से 15.55 बजे तक सी4-अनुभाग के गैंग संख्या 348 के सुरक्षा अनुभाग द्वारा किए गए औचक निरीक्षण के दौरान अनधिकृत रूप से कार्यस्थल से अनुपस्थित थे। आचरण नियमों के आभ्यासिक उल्लंघनकर्ता होने के तथ्यों और लांछनों की भी पूर्व अनुशासनिक विवरण के रिकॉर्ड से पुष्टि होती है।
6.और यतः महाप्रबन्धक / अनुशासनिक प्राधिकारी द्वारा जांच रिपोर्ट स्वीकार किया गया और तत्पश्चात जांच रिपोर्ट की एक प्रति आरोपी सरकारी कर्मचारी कथित श्री योगेन्द्र प्रसाद निगम को दिनांक 25.09.2020 को प्रेषित की गई। कथित श्री योगेन्द्र प्रसाद निगम को पुनः यह अवसर दिया गया कि यदि उन्हें जांच रिपोर्ट के संदर्भ में कोई अभ्यावेदन प्रस्तुत करना हो तो वह जांच रिपोर्ट प्राप्त होने के प्राप्त होने के पन्द्रह दिनों के अन्दर प्रस्तुत कर सकते हैं ताकि उनके अभ्यावेदन पर सम्यक विचार करते हुए इस अनुशासनिक प्रकरण / मामले का निस्तारण किया जा सके।
7.और यतः आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर/एमसीएम, टि.सं. 88517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) ने जांच रिपोर्ट के संदर्भ में प्रस्तुत अपने अभ्यावेदन संख्या: निल, दिनांक 01/10/2020 में कहा कि ... उनका कोई इरादा कार्यस्थल से अनधिकृत रूप से अनुपस्थित होने का नहीं था... अनुपस्थिति का कारण आकस्मिक तथा गैर इरादतन था... पिछली अनुशासनिक कार्यवाहियों का विवरण अत्यधिक पुराना है और उनको इस कार्यवाही से जोड़ना उचित नहीं है...। अतः उन्हें अनधिकृत अनुपस्थिति के आरोपों से बरी करते हुए ज्ञापन को रद्द करने की कृपा की जाए।
8.और यतः उपरोक्तानुसार, अधोहस्ताक्षरी (महाप्रबन्धक / अनुशासनिक प्राधिकारी ओपीएफ कानपुर) श्री योगेन्द्र प्रसाद निगम को जारी किए गए ज्ञापन/आरोप पत्र में लगाए गए कदाचार के लांछनों, जांच अधिकारी की जांच रिपोर्ट और आरोपी सरकारी कर्मचारी द्वारा प्रस्तुत प्रतिरक्षा का लिखित कथन के आलोक में इस प्रकरण से संबंधित सभी पहलुओं पर गहन और सम्यक विचार करने के बाद इस बात से संतुष्ट और आश्वस्त है कि कथित श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर / एमसीएम, टि.सं. 517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) को ज्ञापन/आरोप पत्र दिनांक 28/11/2019 में विरचित कदाचार अथवा दुर्व्यवहार के लांछनों / आरोपों से स्वयं का बचाव करने हेतु प्राकृतिक न्याय की अवधारणा के अनुकूल और संवैधानिक प्रावधानों के अन्तर्गत सभी नियमसंगत अवसर प्रदान किए गए। जांच कार्यवाही की प्रक्रिया पूर्ण पारदर्शी थी, जांच कार्यवाही और जांच अधिकारी के प्रति आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम को कोई असंतोष नहीं था, और अपने बचाव के अवसरों का आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम ने पूर्ण उपयोग किया।
9.और यतः उपर्युक्त अनुच्छेदों अर्थात् 1 से 8 तक में वर्णित तथ्यों, जांच अधिकारी की रिपोर्ट, इन्क्वायरी के दौरान दर्ज किए गये अभियोजन / बचाव पक्ष के बयान, रिकॉर्ड में उपलब्ध दस्तावेजी साक्ष्यों, घटना के तथ्यों एवं परिस्थितियों, और आरोपी सरकारी कर्मचारी के पूर्व अनुशासनिक विवरण का सम्यक अवलोकन करने के साथ ही, वर्तमान प्रकरण जिसमें दिनांक 18/10/2019 को श्री योगेन्द्र प्रसाद निगम का कार्यस्थल से अनधिकृत रूप से अनधिकृत पाया गया था के अतिरिक्त रिकॉर्ड में यह भी है कि कार्यस्थल से अनधिकृत अनुपस्थिति के एक अन्य प्रकरण जिसमें उक्त श्री योगेन्द्र प्रसाद निगम दिनांक 18/11/2017 को सुरक्षा अनुभाग के औचक निरीक्षण के दौरान अनधिकृत रूप से कार्यस्थल से अनुपस्थित पाये जाने के प्रकरण में के०सि० से० (वर्गीकरण, नियंत्रण एवं अपील) नियमावली, 1965 के नियम 14 के अन्तर्गत कोर्ट ऑफ इन्क्वायरी चल रही है। इन सबके साथ ही आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम के अब तक के सेवा काल में उनके आचरण पर सभी दृष्टिकोण से गम्भीरतापूर्वक विचार करने के पश्चात अधोहस्ताक्षरी (महाप्रबन्धक / अनुशासनिक प्राधिकारी) इस निष्कर्ष पर पहुँचे हैं कि श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर / एमसीएम, टि.सं. 8517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) ज्ञापन संख्या: सीएफ 1591/ कान/ वाईपीएन 8517/ विज/19 दि० 28.11.2019 के उपबन्ध-1 के विभिन्न अनुच्छेदों (एक एवं दो) में लगाए गए कदाचार अथवा दुर्व्यवहार के लांछन और आचरण नियमों का आभ्यासिक उल्लंघनकर्ता होने का लांछन पूर्णतः सिद्ध होते हैं।
10.और यतः कदाचार अथवा दुर्व्यवहार की प्रकृति, गम्भीरता और आचरण नियमों के आभ्यासिक उल्लंघनकर्ता होने, पूर्व में सेवा से निकाले जाने और मानवीय आधार पर पुनः शासकीय सेवा में बहाल किए जाने के बावजूद बारंबार कार्य स्थल से अनधिकृत रूप से अनुपस्थित होने से यह सिद्ध होता है कि आरोपी सरकारी कर्मचारी श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर / एमसीएम, टि.सं. 8517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) शासकीय सेवा के प्रति सत्यनिष्ठ नहीं है, शासकीय सेवा के प्रति कर्तव्यपरायण नहीं है और उनका आचरण अशोभनीय है। अतः शासकीय हित में और न्याय के उद्देश्य की पूर्ति हेतु आवश्यक है कि कथित श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर/एमसीएम, टि.सं. 8517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) पर मेजर पेनाल्टी अधिरोपित की जाए।
14.अब, इसलिए, अधोहस्ताक्षरी (महाप्रबन्धक / अनुशासनिक प्राधिकारी ओपीएफ कानपुर) बिना किसी पूर्वाग्रह के और निष्पक्ष रूप से शासकीय हित में उपर्युक्त श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर / एमसीएम, टि.सं. 8517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) पर दिनांक 09/11/2020 अपराह्न से Removal from Service* की मेजर पेनाल्टी अधिरोपित करते हैं। इस प्रकार उक्त श्री योगेन्द्र प्रसाद निगम की पूर्व सेवा एवं सभी सेवानिवृत्ति प्रसुविधाएं भी समपन्न होती हैं (Imposition of Penalty of Removal from Service entails forfeiture of past service and hence forfeiture of all terminal benefits)।
12.श्री योगेन्द्र प्रसाद निगम (पदनाम-टेलर / एमसीएम, टि.सं. 8517/एल, पी4/सी4 अनुभाग, आयुध पैराशूट निर्माणी कानपुर) द्वारा इस शास्ति आदेश की पावती अभिसूची की जाये।
The principal defence of the applicant is that he had suddenly fallen ill on 18.10.2019 and, after leaving his residence during lunch hours, had telephonically informed his Sectional In-charge, Shri B.K. Pal, at about 3:00 p.m. that he was not well and would not be able to resume his duties for the remaining part of the day. However, this defence, when examined in the light of the contemporaneous record, does not inspire confidence.
It is noted that Shri B.K. Pal was admittedly the Sectional In-charge and was present at the time of the surprise inspection. If the applicant had actually informed him at about 3:00 p.m. regarding his illness and had sought permission to remain absent for the remaining part of the day, there was no apparent reason for the Sectional In-charge not to disclose such fact to the inspecting team at the time of the inspection. On the contrary, he signed the inspection report recording the absence of the applicant. The conduct of the Sectional In-charge at the relevant point of time, therefore, assumes considerable significance and materially weakens the subsequent version regarding prior telephonic intimation.
Although Shri B.K. Pal subsequently stated during the inquiry proceedings that the applicant had telephonically informed him about his illness, the said statement has to be appreciated along with his conduct at the time when the surprise inspection was actually conducted. The inspection report is a contemporaneous document prepared at the relevant time, and the Sectional In-charge, who was present during the inspection, did not make any endorsement or disclose to the inspecting officers that the applicant had already informed him of his illness and had sought leave. Rather, he put his signature on the inspection report. In these circumstances, the subsequent statement made during the inquiry cannot, by itself, be treated as sufficient to establish that the applicant's absence had been duly authorized. There is also no documentary evidence on record, such as any written leave application or other contemporaneous communication, corroborating the alleged telephonic intimation.
Further, the medical ground taken by the applicant also does not satisfactorily justify his absence on the relevant date. It is not disputed that the applicant was suffering from certain ailments and had earlier been granted permission vide order dated 24.09.2019 for treatment. However, such permission cannot be construed as a blanket authorization to remain absent from duty on 18.10.2019. More importantly, the applicant has not annexed or produced any prescription, medical report or treatment record issued by any doctor specifically dated 18.10.2019, i.e. the very date on which he was found absent during the surprise inspection. In the absence of any contemporaneous medical prescription or treatment document pertaining to 18.10.2019, the assertion that he had suddenly fallen ill on that particular date remains substantially uncorroborated. The applicant had also not submitted any leave application for the said date. Thus, the existence of a pre-existing medical condition, by itself, cannot establish that his absence from the place of duty on 18.10.2019 was either medically necessitated or duly authorized.
A detailed inquiry has been conducted and there are no laches in the inquiry proceedings as the applicant was given ample opportunity to defend his case. It is not a case of no evidence. The Inquiry Officer has evaluated the evidence and returned the finding that charges against the applicant has been proved.
Thereafter, the impugned orders have been passed against the applicant. The Appellate Authority while deciding the appeal of the applicant, considered each and every aspect of the matter and modified the punishment order as awarded by the Disciplinary Authority. Once the penalty has been imposed on the applicant after following due procedure as laid down in rules, the Tribunal/High Court should not interfere with the findings of facts recorded by re-appreciating the evidence.
It is settled principle of law that in Original Applications, challenging the orders in disciplinary proceedings, the scope of interference of the Tribunals is very limited. In a catena of judgments by the Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority/Appellate Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting the enquiry.
The Apex Court in the case of S. R. Tewari vs. Union of India 2013(7) Scale Page 417 has held as under :-
"The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice".
The Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court/Tribunal are not competent and cannot appreciate the evidence. In this regard, the Apex Court has been pleased to observe as under:-
"The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.
Per Ramaswamy and Jeevan Reddy, JJ
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
In another case the Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-
"In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."
In the instant case, from the record, it is evident that there is substantial compliance of the procedure prescribed for disciplinary proceedings as well as inquiry and ample opportunity has been provided to the applicant to defend his case. Thus it cannot be said that there is violation of any procedure or the principles of natural justice, which will vitiate the inquiry and there is no allegation of bias, malice or perversity.
We are also unable to accept the contention of the counsel for the applicant that the disciplinary proceedings stand vitiated merely because the doctor was not examined during the inquiry. The charge against the applicant was essentially one of unauthorized absence from the place of duty. The factum of his absence during the surprise inspection is supported by the contemporaneous inspection report. The applicant's defence of prior intimation is not supported by any contemporaneous document and is further weakened by the conduct of the Sectional In-charge, who was present at the time of inspection but neither informed the inspecting officers of any prior intimation nor recorded any such fact in the inspection report and, instead, signed the said report. The medical documents relied upon by the applicant also do not establish that he was under treatment or medically incapacitated on 18.10.2019. Therefore, the non-examination of the doctor does not render the inquiry proceedings invalid.
It is further evident from the record that the present incident was not an isolated instance of unauthorized absence. The respondents have placed reliance upon the applicant's past service record and submitted that several administrative and disciplinary actions had been taken against him during his service, predominantly in relation to unauthorized absence. It has also been pointed out that on an earlier occasion, i.e. 18.11.2017, the applicant had similarly left his workplace during the lunch break and was found absent during a surprise inspection. Thus, while considering the quantum of punishment, the disciplinary authorities were justified in taking into consideration the applicant's past conduct and service record, which was also mentioned in the charge-sheet.
So far as the plea of disproportionate punishment is concerned, we find that the Appellate Authority has already considered the matter and modified the penalty of removal from service to compulsory retirement by taking a lenient view as the applicant's past service record and the repeated instances of unauthorized absence relied upon by the respondents, the punishment of compulsory retirement cannot be said to be shockingly disproportionate so as to warrant interference by this Tribunal. The judgments relied upon by the counsel for the applicant has no help to him.
In view of the aforesaid discussion, we find no illegality, infirmity or perversity either in the inquiry proceedings or in the orders passed by the Appellate Authority. The applicant has failed to establish that his absence on 18.10.2019 was duly authorized or that the findings recorded against him were contrary to the evidence on record. His plea of sudden illness is not corroborated by any contemporaneous medical prescription or treatment record dated 18.10.2019, nor is his plea of prior intimation satisfactorily established, particularly in view of the conduct of the Sectional In-charge at the time of the surprise inspection. The Appellate Authority has already shown leniency by modifying the penalty of removal to compulsory retirement. We, therefore, find no ground to interfere with the impugned orders dated 05.11.2020 and 25.03.2021.
Accordingly, instant original application is liable to be dismissed and as such, same is hereby dismissed.
All MAs pending in this O.A. also stand disposed off.
No order as to costs.